Exhibit 10.1


 


EXECUTION VERSION


	
   

  	
   

  



 


AMENDED AND
RESTATED


 


CORNERSTONE
INVESTMENT AGREEMENT


 


effective
as of March 31, 2010


 


between


 


REP
INVESTMENTS LLC


 


and


 


GENERAL
GROWTH PROPERTIES, INC.


	
   

  	
   

  



 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article I

  	
  PURCHASE
  OF NEW COMMON STOCK; CLOSING

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Purchase
  of New Common Stock

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Closing

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Company
  Rights Offering Election

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article II

  	
  GGO
  SHARE DISTRIBUTION AND PURCHASE OF GGO COMMON STOCK

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  GGO
  Share Distribution

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Purchase
  of GGO Common Stock

  	
  6

  
	
   

  	
   

  	
   

  
	
  Article III

  	
  REPRESENTATIONS
  AND WARRANTIES OF THE COMPANY

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Organization
  and Qualification

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Corporate
  Power and Authority

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Execution
  and Delivery; Enforceability

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Authorized
  Capital Stock

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Issuance

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  No
  Conflict

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Consents
  and Approvals

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Company
  Reports

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  No
  Undisclosed Liabilities

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  No
  Material Adverse Effect

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  No
  Violation or Default: Licenses and Permits

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Legal
  Proceedings

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.13

  	
  Investment
  Company Act

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  Compliance
  With Environmental Laws

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.15

  	
  Company
  Benefit Plans

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.16

  	
  Labor
  and Employment Matters

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.17

  	
  Insurance

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.18

  	
  No
  Unlawful Payments

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.19

  	
  No
  Broker’s Fees

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.20

  	
  Real
  and Personal Property

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.21

  	
  Tax
  Matters

  	
  21

  



 


i

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.22

  	
  Material
  Contracts

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.23

  	
  Certain
  Restrictions on Charter and Bylaws Provisions; State Takeover Laws

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 3.24

  	
  No
  Other Representations or Warranties

  	
  24

  
	
   

  	
   

  	
   

  
	
  Article IV

  	
  REPRESENTATIONS
  AND WARRANTIES OF PURCHASER

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Power
  and Authority

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Execution
  and Delivery

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  No
  Conflict

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Consents
  and Approvals

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Compliance
  with Laws

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Legal
  Proceedings

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.8

  	
  No
  Broker’s Fees

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.9

  	
  Sophistication

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Purchaser
  Intent

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.11

  	
  Reliance
  on Exemptions

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.12

  	
  REIT
  Representations

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.13

  	
  No
  Other Representations or Warranties

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.14

  	
  Acknowledgement

  	
  26

  
	
   

  	
   

  	
   

  
	
  Article V

  	
  COVENANTS
  OF THE COMPANY AND PURCHASER

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Bankruptcy
  Court Motions and Orders

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Warrants,
  New Warrants and GGO Warrants

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  Assistance
  with Capital Raising Activities

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Listing

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 5.5

  	
  Use
  of Proceeds

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 5.6

  	
  Access
  to Information

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 5.7

  	
  Competing
  Transactions

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.8

  	
  Reservation
  for Issuance

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.9

  	
  Subscription
  Rights

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Company
  Board of Directors

  	
  33

  



 


ii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Notification
  of Certain Matters

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Further
  Assurances

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  [Intentionally
  Omitted.]

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Rights
  Agreement; Reorganized Company Organizational Documents

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Stockholder
  Approval

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.16

  	
  Registration
  Statements

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.17

  	
  Closing
  Date Net Debt

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.18

  	
  Determination
  of Domestically Controlled REIT Status

  	
  43

  
	
   

  	
   

  	
   

  
	
  Article VI

  	
  ADDITIONAL
  COVENANTS OF PURCHASER

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Information

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Purchaser
  Efforts

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Plan
  Support

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Transfer
  Restrictions

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Equity
  Commitments; Source of Funds

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  REIT
  Representations and Covenants

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Non-Control
  Agreement

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  Purchaser
  Formed Entities

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Additional
  Backstops

  	
  48

  
	
   

  	
   

  	
   

  
	
  Article VII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF PURCHASER

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Conditions
  to the Obligations of Purchaser

  	
  51

  
	
   

  	
   

  	
   

  
	
  Article VIII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF THE COMPANY

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Conditions
  to the Obligations of the Company

  	
  60

  
	
   

  	
   

  	
   

  
	
  Article IX

  	
  INDEMNIFICATION

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Indemnification

  	
  62

  
	
   

  	
   

  	
   

  
	
  Article X

  	
  SURVIVAL
  OF REPRESENTATIONS AND WARRANTIES

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Survival
  of Representations and Warranties

  	
  63

  
	
   

  	
   

  	
   

  
	
  Article XI

  	
  TERMINATION

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Termination

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Effects
  of Termination

  	
  67

  



 


iii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article XII

  	
  DEFINITIONS

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Defined
  Terms

  	
  67

  
	
   

  	
   

  	
   

  
	
  Article XIII

  	
  MISCELLANEOUS

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Notices

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 13.2

  	
  Assignment;
  Third Party Beneficiaries

  	
  83

  
	
   

  	
   

  	
   

  
	
  Section 13.3

  	
  Prior
  Negotiations; Entire Agreement

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 13.4

  	
  Governing
  Law; Venue

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section 13.5

  	
  Company
  Disclosure Letter

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 13.6

  	
  Counterparts

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 13.7

  	
  Expenses

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 13.8

  	
  Waivers
  and Amendments

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 13.9

  	
  Construction

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 13.10

  	
  Adjustment
  of Share Numbers and Prices

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 13.11

  	
  Certain
  Remedies

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 13.12

  	
  Bankruptcy
  Matters

  	
  88

  



 


iv

















 


LIST OF EXHIBITS


 


	
  Exhibit A:

  	
  Plan
  Summary Term Sheet

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit B:

  	
  Post-Bankruptcy
  GGP Corporate Structure

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit C-1:

  	
  Fairholme
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit C-2:

  	
  Pershing
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit D:

  	
  REIT
  Representation Letter

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit E:

  	
  GGO
  Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit F:

  	
  Form of
  Approval Order

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit G:

  	
  Form of
  Warrant Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit H:

  	
  [Intentionally
  Omitted]

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit I:

  	
  [Intentionally
  Omitted]

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit J:

  	
  Form of
  REIT Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit K:

  	
  Form of
  Amended and Restated Brookfield Equity Commitment Letter

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit L:

  	
  Form of
  Escrow Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit M:

  	
  Form of
  Non-Control Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit N:

  	
  Certain
  REIT Investors

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit O:

  	
  Form of Tax Matters Agreement

  	
   

  



 


v

















 


INDEX OF
DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  2006 Bank Loan

  	
   

  	
  67

  
	
  Acceptable LC

  	
   

  	
  66

  
	
  Additional Financing

  	
   

  	
  56

  
	
  Additional Sales Period

  	
   

  	
  67

  
	
  Adequate Reserves

  	
   

  	
  21

  
	
  Adjusted CDND

  	
   

  	
  42

  
	
  Affiliate

  	
   

  	
  67

  
	
  Agreement

  	
   

  	
  1

  
	
  Amended and Restated Agreement

  	
   

  	
  1

  
	
  Anticipated Debt Paydowns

  	
   

  	
  56

  
	
  Approval Motion

  	
   

  	
  26

  
	
  Approval Order

  	
   

  	
  26

  
	
  Asset Sales

  	
   

  	
  56

  
	
  Backstop Investors

  	
   

  	
  49

  
	
  Bankruptcy Cases

  	
   

  	
  1

  
	
  Bankruptcy Code

  	
   

  	
  1

  
	
  Bankruptcy Court

  	
   

  	
  1

  
	
  Blackstone

  	
   

  	
  83

  
	
  Blackstone Assigned Securities

  	
   

  	
  83

  
	
  Blackstone Assigned Shares

  	
   

  	
  83

  
	
  Blackstone Assigned Warrants

  	
   

  	
  83

  
	
  Blackstone Purchase Price

  	
   

  	
  83

  
	
  Brazilian Entities

  	
   

  	
  67

  
	
  Bridge Securities

  	
   

  	
  50

  
	
  Brookfield Consortium Member

  	
   

  	
  68

  
	
  Brookfield Equity Commitment
  Letter

  	
   

  	
  66

  
	
  Business Day

  	
   

  	
  68

  
	
  Calculation Date

  	
   

  	
  43

  
	
  Capital Raising Activities

  	
   

  	
  28

  
	
  Cash Equivalents

  	
   

  	
  68

  
	
  Chapter 11

  	
   

  	
  1

  
	
  Claims

  	
   

  	
  68

  
	
  Clawback Fee

  	
   

  	
  68

  
	
  Closing

  	
   

  	
  4

  
	
  Closing Date

  	
   

  	
  4

  
	
  Closing Date Net Debt

  	
   

  	
  68

  
	
  Closing Date Net Debt W/O
  Reinstatement Adjustment and Permitted Claims Amounts

  	
   

  	
  69

  
	
  Closing Funding Certification

  	
   

  	
  86

  
	
  Closing Restraint

  	
   

  	
  65

  
	
  CMPC

  	
   

  	
  6

  
	
  CNDAS Dispute Notice

  	
   

  	
  40

  
	
  CNDAS Disputed Items

  	
   

  	
  41

  
	
  Code

  	
   

  	
  15

  



 


vi

















 


	
  Commitment Amount

  	
   

  	
  48

  
	
  Common Stock

  	
   

  	
  1

  
	
  Company

  	
   

  	
  2

  
	
  Company Benefit Plan

  	
   

  	
  69

  
	
  Company Board

  	
   

  	
  70

  
	
  Company Disclosure Letter

  	
   

  	
  7

  
	
  Company Ground Lease Property

  	
   

  	
  19

  
	
  Company Mortgage Loan

  	
   

  	
  20

  
	
  Company Option Plans

  	
   

  	
  8

  
	
  Company Properties

  	
   

  	
  17

  
	
  Company Property

  	
   

  	
  17

  
	
  Company Property Lease

  	
   

  	
  19

  
	
  Company Rights Offering

  	
   

  	
  4

  
	
  Company SEC Reports

  	
   

  	
  12

  
	
  Competing Transaction

  	
   

  	
  70

  
	
  Conclusive Net Debt Adjustment
  Statement

  	
   

  	
  70

  
	
  Confidentiality Agreement

  	
   

  	
  28

  
	
  Confirmation Order

  	
   

  	
  52

  
	
  Confirmed Debtors

  	
   

  	
  78

  
	
  Contingent and Disputed Debt
  Claims

  	
   

  	
  70

  
	
  Contract

  	
   

  	
  70

  
	
  Corporate Level Debt

  	
   

  	
  71

  
	
  Dealer Manager

  	
   

  	
  49

  
	
  Debt

  	
   

  	
  71

  
	
  Debt Cap

  	
   

  	
  56

  
	
  Debtors

  	
   

  	
  1

  
	
  Designation Conditions

  	
   

  	
  4

  
	
  DIP Loan

  	
   

  	
  71

  
	
  Disclosure Statement

  	
   

  	
  71

  
	
  Disclosure Statement Order

  	
   

  	
  53

  
	
  Dispute Notice

  	
   

  	
  40

  
	
  Disputed Items

  	
   

  	
  40

  
	
  Domestically Controlled REIT

  	
   

  	
  43

  
	
  Effective Date

  	
   

  	
  4

  
	
  Encumbrances

  	
   

  	
  17

  
	
  Environmental Laws

  	
   

  	
  14

  
	
  Equity Exchange

  	
   

  	
  2

  
	
  Equity Financing

  	
   

  	
  87

  
	
  Equity Provider

  	
   

  	
  66

  
	
  Equity Securities

  	
   

  	
  8

  
	
  ERISA

  	
   

  	
  71

  
	
  ERISA Affiliate

  	
   

  	
  15

  
	
  Escrow Agreement

  	
   

  	
  66

  
	
  Escrow Agreements

  	
   

  	
  66

  
	
  Excess Surplus Amount

  	
   

  	
  71

  
	
  Exchangeable Notes

  	
   

  	
  71

  



 


vii

















 


	
  Excluded Claims

  	
   

  	
  71

  
	
  Excluded Non-US Plans

  	
   

  	
  15

  
	
  Fairholme Agreement

  	
   

  	
  2

  
	
  Fairholme Investors

  	
   

  	
  2

  
	
  Fairholme/Pershing  Agreements

  	
   

  	
  2

  
	
  Fairholme/Pershing Investors

  	
   

  	
  2

  
	
  Foreign Plan

  	
   

  	
  15

  
	
  Fully Diluted Basis

  	
   

  	
  73

  
	
  Funding Document

  	
   

  	
  81

  
	
  GAAP

  	
   

  	
  73

  
	
  GGO

  	
   

  	
  2

  
	
  GGO Agreement

  	
   

  	
  35

  
	
  GGO Board

  	
   

  	
  35

  
	
  GGO Common Share Amount

  	
   

  	
  73

  
	
  GGO Common Stock

  	
   

  	
  5

  
	
  GGO Note Amount

  	
   

  	
  73

  
	
  GGO Per Share Purchase Price

  	
   

  	
  6

  
	
  GGO Promissory Note

  	
   

  	
  74

  
	
  GGO Purchase Price

  	
   

  	
  6

  
	
  GGO Representative

  	
   

  	
  5

  
	
  GGO Setup Costs

  	
   

  	
  74

  
	
  GGO Share Distribution

  	
   

  	
  5

  
	
  GGO Shares

  	
   

  	
  6

  
	
  GGO Warrants

  	
   

  	
  27

  
	
  GGP

  	
   

  	
  1

  
	
  GGP Backstop Rights Offering

  	
   

  	
  48

  
	
  GGP Backstop Rights Offering
  Amount

  	
   

  	
  48

  
	
  Governmental Entity

  	
   

  	
  74

  
	
  Hazardous Materials

  	
   

  	
  14

  
	
  Hughes Agreement

  	
   

  	
  74

  
	
  Hughes Amount

  	
   

  	
  73

  
	
  Hughes Heirs Obligations

  	
   

  	
  74

  
	
  Identified Assets

  	
   

  	
  5

  
	
  Indebtedness

  	
   

  	
  74

  
	
  Indemnified Person

  	
   

  	
  62

  
	
  Initial Investors

  	
   

  	
  50

  
	
  Joint Venture

  	
   

  	
  75

  
	
  Knowledge

  	
   

  	
  75

  
	
  Law

  	
   

  	
  75

  
	
  Liquidity Equity Issuances

  	
   

  	
  75

  
	
  Liquidity Target

  	
   

  	
  55

  
	
  Material Adverse Effect

  	
   

  	
  75

  
	
  Material Contract

  	
   

  	
  76

  
	
  Material Lease

  	
   

  	
  19

  
	
  Measurement Date

  	
   

  	
  8

  
	
  Most Recent Statement

  	
   

  	
  17

  



 


viii

















 


	
  MPC Assets

  	
   

  	
  76

  
	
  MPC Taxes

  	
   

  	
  77

  
	
  Net Debt Excess Amount

  	
   

  	
  77

  
	
  Net Debt Surplus Amount

  	
   

  	
  77

  
	
  New Common Stock

  	
   

  	
  1

  
	
  New Debt

  	
   

  	
  55

  
	
  New DIP Agreement

  	
   

  	
  52

  
	
  New Warrants

  	
   

  	
  27

  
	
  Non-Control Agreement

  	
   

  	
  77

  
	
  Non-Controlling Properties

  	
   

  	
  77

  
	
  NYSE

  	
   

  	
  28

  
	
  Offering Premium

  	
   

  	
  77

  
	
  Operating Partnership

  	
   

  	
  78

  
	
  Original Agreement

  	
   

  	
  1

  
	
  Other Sponsor

  	
   

  	
  81

  
	
  PBGC

  	
   

  	
  15

  
	
  Per Share Purchase Price

  	
   

  	
  3

  
	
  Permitted Assign

  	
   

  	
  3

  
	
  Permitted Claims

  	
   

  	
  78

  
	
  Permitted Claims Amount

  	
   

  	
  78

  
	
  Permitted Title Exceptions

  	
   

  	
  17

  
	
  Pershing Agreement

  	
   

  	
  2

  
	
  Pershing Investors

  	
   

  	
  2

  
	
  Person

  	
   

  	
  78

  
	
  Petition Date

  	
   

  	
  1

  
	
  Plan

  	
   

  	
  1

  
	
  Plan Debtors

  	
   

  	
  78

  
	
  Plan Summary Term Sheet

  	
   

  	
  1

  
	
  PMA Claims

  	
   

  	
  78

  
	
  Preliminary Closing  Date
  Net Debt Review Deadline

  	
   

  	
  78

  
	
  Preliminary Closing  Date
  Net Debt Review Period

  	
   

  	
  78

  
	
  Preliminary Closing Date Net Debt
  Schedule

  	
   

  	
  40

  
	
  Proceedings

  	
   

  	
  62

  
	
  Proportionally Consolidated Debt

  	
   

  	
  79

  
	
  Proportionally Consolidated
  Unrestricted Cash

  	
   

  	
  79

  
	
  Proposed Approval Order

  	
   

  	
  26

  
	
  Proposed Securities

  	
   

  	
  30

  
	
  Purchase Price

  	
   

  	
  3

  
	
  Purchaser

  	
   

  	
  1

  
	
  Purchaser Board Designees

  	
   

  	
  33

  
	
  Purchaser GGO Board Designee

  	
   

  	
  35

  
	
  Refinance Cap

  	
   

  	
  58

  
	
  Reinstated Amounts

  	
   

  	
  55

  
	
  Reinstatement Adjustment Amount

  	
   

  	
  79

  
	
  REIT

  	
   

  	
  21

  
	
  REIT Subsidiary

  	
   

  	
  22

  



 


ix

















 


	
  Release Date

  	
   

  	
  47

  
	
  Reorganized Company

  	
   

  	
  1

  
	
  Reorganized Company
  Organizational Documents

  	
   

  	
  38

  
	
  Reserve

  	
   

  	
  78

  
	
  Reserve Surplus Amount

  	
   

  	
  79

  
	
  Resolution Period

  	
   

  	
  40

  
	
  Rights Agreement

  	
   

  	
  79

  
	
  Rights Offering Election

  	
   

  	
  4

  
	
  Rouse Bonds

  	
   

  	
  79

  
	
  Rule 144

  	
   

  	
  46

  
	
  Sales Cap

  	
   

  	
  57

  
	
  SEC

  	
   

  	
  12

  
	
  Securities Act

  	
   

  	
  12

  
	
  Share Cap Number

  	
   

  	
  56

  
	
  Share Equivalent

  	
   

  	
  80

  
	
  Shares

  	
   

  	
  3

  
	
  Significant Subsidiaries

  	
   

  	
  80

  
	
  SOX

  	
   

  	
  44

  
	
  Subscribing Entities

  	
   

  	
  29

  
	
  Subscribing Entity

  	
   

  	
  29

  
	
  Subscription Right

  	
   

  	
  30

  
	
  Subsidiary

  	
   

  	
  80

  
	
  Synthetic Lease Obligation

  	
   

  	
  75

  
	
  Target Net Debt

  	
   

  	
  80

  
	
  Tax Matters Agreement

  	
   

  	
  80

  
	
  Tax Protection Agreements

  	
   

  	
  80

  
	
  Tax Return

  	
   

  	
  21

  
	
  Taxes

  	
   

  	
  21

  
	
  Termination Date

  	
   

  	
  80

  
	
  Termination Date Extension Notice

  	
   

  	
  80

  
	
  Transactions

  	
   

  	
  81

  
	
  Transfer

  	
   

  	
  46

  
	
  TRUPS

  	
   

  	
  81

  
	
  U.S. Persons

  	
   

  	
  43

  
	
  Unrestricted Cash

  	
   

  	
  81

  
	
  Unsecured Indebtedness

  	
   

  	
  82

  
	
  UPREIT Units

  	
   

  	
  82

  
	
  Warrant Agreement

  	
   

  	
  27

  
	
  Warrants

  	
   

  	
  27

  



 


x

















 


AMENDED AND RESTATED CORNERSTONE INVESTMENT AGREEMENT, effective as of March 31, 2010 (this “Agreement”),
by and between General Growth Properties, Inc., a Delaware corporation (“GGP”), and REP Investments
LLC, a Delaware limited liability company (together with its permitted assigns,
“Purchaser”).


 


On March 31, 2010, GGP and Purchaser entered
into the Cornerstone Investment Agreement (as subsequently amended on May 3,
2010 and May 7, 2010, the “Original Agreement”) to provide for the
terms and conditions for the consummation of the transactions contemplated
therein.  On August 2, 2010, GGP and
Purchaser entered into the Amended and Restated Cornerstone Investment
Agreement, effective as of March 31, 2010 (the “Amended and Restated
Agreement”) which amended and restated the Original Agreement ab initio in its entirety as set forth therein.  Pursuant to Section 13.8 of the Amended
and Restated Agreement, the parties thereto wish to amend and restate the
Amended and Restated Agreement ab initio in
its entirety as set forth herein. 
References herein to “date of this Agreement” and “date hereof” shall
refer to March 31, 2010.


 


RECITALS


 


WHEREAS,
GGP is a debtor in possession in that certain bankruptcy case under chapter 11
(“Chapter 11”) of Title 11 of the United States Code, 11 U.S.C.
§§ 101 -1532 (as amended, the “Bankruptcy Code”) filed on April 16,
2009 (the “Petition Date”) in the United States Bankruptcy Court for the
Southern District of New York (the “Bankruptcy Court”), Case No. 09-11977
(ALG).


 


WHEREAS, Purchaser
desires to assist GGP in its plans to recapitalize and emerge from bankruptcy
and has agreed to sponsor the implementation of a joint chapter 11 plan of
reorganization based on the Plan Summary Term Sheet (as defined below)
(together with all documents and agreements that form part of such plan or
related plan supplement or are related thereto, and as it may be amended,
modified or supplemented from time to time, in each case, to the extent it
relates to the implementation and effectuation of the Plan Summary Term Sheet
and this Agreement, the “Plan”), of GGP and its Subsidiaries and
Affiliates who are debtors and debtors-in-possession (the “Debtors”) in
the chapter 11 cases pending and jointly administered in the Bankruptcy Court
(the “Bankruptcy Cases”).


 


WHEREAS, principal
elements of the Plan (including a table setting forth the proposed treatment of
allowed claims and equity interests in the Bankruptcy Cases) are set forth on Exhibit A
hereto (the “Plan Summary Term Sheet”).


 


WHEREAS,
the Plan shall provide, among other things, that (i) each holder of common
stock, par value $0.01 per share, of GGP (the “Common Stock”) shall
receive, in exchange for each share of Common Stock held by such holder, one
share of new common stock (the “New Common Stock”) of a new company that
succeeds to GGP in the manner contemplated by Exhibit B upon
consummation of the Plan (the “Reorganized Company”) and (ii) any
Equity Securities (other than Common Stock) of the Company (as defined below)
or any of its Subsidiaries (as defined below) outstanding immediately after the
Effective Date that were previously convertible into, or exercisable or
exchangeable for, Common Stock shall thereafter be convertible into, or
exercisable or exchangeable for, New Common Stock (based upon the


 
















 


number of shares of Common Stock underlying such
Equity Securities) (the transactions contemplated by clauses (i) and (ii) of
this recital being referred to herein as the “Equity Exchange”).  For purposes of this Agreement, the “Company”
shall be deemed to refer, prior to consummation of the Plan, to GGP and, on and
after consummation of the Plan, the Reorganized Company, as the context
requires.


 


WHEREAS, Purchaser
desires to make an investment in the Reorganized Company on the terms and
subject to the conditions described herein in the form of the purchase of
shares of New Common Stock as contemplated hereby.


 


WHEREAS,
in addition to the Equity Exchange and the sale of the Shares (as defined
below), the Plan shall provide for the incorporation by the Company of a new
subsidiary (“GGO”), the contribution of certain assets (and/or equity
interests related thereto) of the Company to GGO and the assumption by GGO of
the liabilities associated with such assets, the distribution to the
shareholders of the Company (prior to the issuance of the Shares and the
issuance of other shares of New Common Stock contemplated by this Agreement
other than pursuant to the Equity Exchange) on a pro rata basis and holders of
UPREIT Units of all of the capital stock of GGO, and whereas Purchaser desires
to make an investment in GGO on the terms and subject to the conditions
described herein in the form of the purchase of shares of GGO Common Stock as
contemplated hereby.


 


WHEREAS, the
Company has requested that Purchaser commit to purchase the Shares and the GGO
Shares at a fixed price for the term hereof.


 


WHEREAS, Purchaser has
agreed to enter into this Agreement and commit to purchase the Shares and the
GGO Shares only on the condition that the Company, as promptly as practicable
following the date hereof (but no later than the date provided in Section 5.2
hereof), issue the Warrants contemplated herein and perform its other
obligations hereunder.


 


WHEREAS, on and effective
as of the date hereof, the Company entered into an agreement (in the form
attached hereto as Exhibit C-1 together with any amendments thereto
as have been approved by Purchaser, the “Fairholme Agreement”) with The
Fairholme Fund and The Fairholme Focused Income Fund (the “Fairholme Investors”)
pursuant to which the Fairholme Investors have agreed to make (i) an
investment of up to $2,714,285,710 in the Reorganized Company in the form of
the purchase of shares of New Common Stock and (ii) an investment of
$62,500,000 in GGO in the form of the purchase of shares of GGO Common Stock.


 


WHEREAS,
on and effective as of the date hereof, the Company entered into an agreement
(in the form attached hereto as Exhibit C-2 together with any
amendments thereto as have been approved by Purchaser, the “Pershing
Agreement” and, together with the Fairholme Agreement, the “Fairholme/Pershing
Agreements”) with Pershing Square, L.P., Pershing Square II, L.P., Pershing
Square International, Ltd. and Pershing Square International V, Ltd.
(the “Pershing Investors” and, together with the Fairholme Investors,
the “Fairholme/Pershing Investors”) pursuant to which the Pershing
Investors have agreed to make (i) an investment of up to $1,085,714,290 in
the Reorganized Company in the form of the purchase of shares of New 


 


2

















 


Common Stock and (ii) an investment of
$62,500,000 in GGO in the form of the purchase of shares of GGO Common Stock.


 


NOW, THEREFORE,
in consideration of the premises, and of the representations, warranties,
covenants and agreements set forth herein, the parties agree as follows:


 


ARTICLE I


 


PURCHASE OF NEW COMMON
STOCK; CLOSING


 


SECTION 1.1                 Purchase of New
Common Stock.


 


(a)           On the terms
and subject to the conditions set forth herein, at the Closing (as defined
below), Purchaser shall purchase from the Company, and the Company shall sell
to Purchaser, 250,000,000 shares of New Common Stock (the “Shares”), for
a price per share equal to $10.00 (the “Per Share Purchase Price” and,
in the aggregate, the “Purchase Price”). 
At the Closing, Purchaser shall cause the Purchase Price to be paid (i) first,
to the extent that Purchaser elects by written notice to the Company not less
than three Business Days prior to the Closing Date, by the application of any
claims against the Debtors that are held by Purchaser (or any Person that
Purchaser may designate pursuant to Section 1.1(c) (a “Permitted
Assign”)) and outstanding as of the Effective Date  in an amount equal to the allowed amount
(inclusive of prepetition and postpetition interest accrued up to and on the
Effective Date at the applicable rate provided in the Plan), with each $10.00
in such amount of allowed claims so applied being in satisfaction of the
obligation to pay $10.00 of the Purchase Price and (ii) second, by wire
transfer of immediately available U.S. Dollar funds.  For the avoidance of doubt, Purchaser may
elect which claims to apply in satisfaction of Purchaser’s obligation to pay
the Purchase Price for purposes of clause (i), and the application of such
claims against the Purchase Price in accordance with clause (i) shall
represent complete satisfaction of the Debtors’ obligations in respect of such
allowed claims so applied.  For the
avoidance of doubt and as provided in the Plan, any application by the
Purchaser or the applicable Permitted Assign of allowed claims in satisfaction
of a portion of the Purchase Price shall be effected by causing the Debtor
liable for such claims to make payment for such claims in accordance with the
Plan and by directing the amounts so payable to be paid to the Company and
applied in satisfaction of a portion of the Purchase Price.


 


(b)           All Shares
shall be delivered with any and all issue, stamp, transfer or similar taxes or
duties payable in connection with such delivery duly paid by the Company to the
extent required under the Confirmation Order or applicable Law.


 


(c)           Purchaser, in
its sole discretion, may designate that some or all of the Shares be issued in
the name of, and delivered to, one or more Brookfield Consortium Members, subject
to (i) such action not causing any delay in the obtaining of, or
significantly increasing the risk of not obtaining, any material
authorizations, consents, orders, declarations or approvals necessary to
consummate the transactions contemplated by this Agreement or otherwise
delaying the consummation of such transactions, (ii) such Person shall be
an “accredited investor” (within the meaning of Rule 501 of Regulation D
under the Securities Act) and shall have agreed in writing with and for the
benefit of the Company to be bound by the terms of this Agreement applicable 


 


3

















 


to Purchaser set forth in Section 6.4 of
this Agreement and the transfer restrictions set forth in the Plan, including
the delivery of the letter certifying compliance with the representations and
covenants set forth on Exhibit D to the extent applicable and (iii) Purchaser
not being relieved of any of its obligations under this Agreement ((i), (ii) and
(iii) collectively, the “Designation Conditions”).


 


SECTION 1.2                 Closing.  Subject to the satisfaction or waiver of the
conditions (excluding conditions that, by their nature, cannot be satisfied
until the Closing, but subject to the satisfaction or waiver of those
conditions as of the Closing) set forth in Article VII and Article VIII,
the closing of the purchase of the Shares and the GGO Shares by Purchaser
pursuant hereto (the “Closing”) shall occur at 9:30 a.m., New York
time, on the effective date of the Plan (the “Effective Date”), at the
offices of Weil, Gotshal & Manges LLP located at 767 Fifth Avenue, New
York, NY 10153, or such other date, time or location as agreed by the
parties.  The date of the Closing is
referred to as the “Closing Date”. 
Each of the Company and Purchaser hereby agree that in no event shall
the Closing occur unless all of the Shares and the GGO Shares are sold to
Purchaser (or to such other Brookfield Consortium Members as Purchaser may
designate in accordance with and subject to the Designation Conditions) on the
Closing Date.


 


SECTION 1.3                 Company Rights
Offering Election.  The Company
may at any time prior to the date of filing of the Disclosure Statement, upon
written notice to Purchaser in accordance with the terms hereof (the “Rights
Offering Election”), irrevocably elect to convert the obligation of
Purchaser to purchase the Shares as contemplated by Section 1.1
hereof into an obligation of Purchaser to participate in a rights offering by
the Company pursuant to which shareholders and/or creditors of the Company are
offered rights to subscribe for shares of New Common Stock (a “Company
Rights Offering”), subject to the execution and delivery of definitive
documentation therefor and the satisfaction of the conditions described therein
and other customary conditions for a public rights offering.  To the extent the Company makes a Rights
Offering Election, (i) Purchaser shall be entitled to a minimum allocation
of shares of New Common Stock in the Company Rights Offering equal to the
number of shares Purchaser would otherwise be required to purchase pursuant to Section 1.1
hereof had no such election been made, (ii) the purchase price per share
payable by Purchaser shall be equal to the Per Share Purchase Price and
Purchaser shall not be otherwise adversely affected as compared to the
transactions contemplated hereby, (iii) the Company Rights Offering shall
be effected in a manner substantially consistent with the procedures
contemplated by Section 2.2 of the Original Agreement, provided that the
Company Rights Offering shall be completed by the Effective Date, and (iv) the
Company and Purchaser shall cooperate in good faith to develop and agree upon
documentation that is reasonably acceptable to both the Company and Purchaser
governing the further terms and conditions of the Company Rights Offering.


 


ARTICLE II


 


GGO SHARE DISTRIBUTION AND
PURCHASE OF GGO COMMON STOCK


 


SECTION 2.1                 GGO Share
Distribution.  On the
terms and subject to the conditions (including Bankruptcy Court approval) set
forth herein, the Plan shall provide for the following:


 


4

















 


(a)           On or prior to
the Effective Date, the Company shall incorporate GGO with issued and
outstanding capital stock consisting of at least the GGO Common Share Amount of
shares of common stock (the “GGO Common Stock”), designate an employee
of the Company familiar with the Identified Assets and reasonably acceptable to
Purchaser to serve as a representative of GGO (the “GGO Representative”)
and shall contribute to GGO (directly or indirectly) the assets (and/or equity
interests related thereto) set forth in Exhibit E hereto and have
GGO assume directly or indirectly the associated liabilities (the “Identified
Assets”); provided, however, that to the extent the Company
is prohibited by Law from contributing one or more of the Identified Assets to
GGO or the contribution thereof would breach or give rise to a default under
any Contract, agreement or instrument that would, in the good faith judgment of
the Company in consultation with the GGO Representative, impair in any material
respect the value of the relevant Identified Asset or give rise to additional
liability (other than liability that would not, in the aggregate, be material)
on the part of GGO or the Company or a Subsidiary of the Company, the Company
shall (i) to the extent not prohibited by Law or would not give rise to
such a default, take such action or cause to be taken such other actions in
order to place GGO, insofar as reasonably possible, in the same economic
position as if such Identified Asset had been transferred as contemplated
hereby and so that, insofar as reasonably possible, substantially all the
benefits and burdens (including all obligations thereunder but excluding any
obligations that arise out of the transfer of the Identified Asset to the
extent included in Permitted Claims) relating to such Identified Asset,
including possession, use, risk of loss, potential for gain and control of such
Identified Asset, are to inure from and after the Closing to GGO (provided,
that as soon as a consent for the contribution of an Identified Asset is
obtained or the contractual impediment is removed or no longer applies, the
applicable Identified Asset shall be promptly contributed to GGO), or (ii) to
the extent the actions contemplated by clause (i) are not possible without
resulting in a material and adverse effect on the Company and its Subsidiaries
(as reasonably determined by the Company in consultation with the GGO
Representative), contribute other assets, with the consent of Purchaser (which
Purchaser shall not unreasonably withhold, condition or delay), having an
economically equivalent value and related financial impact on the Company (in
each case, as reasonably agreed by Purchaser and the Company in consultation with
the GGO Representative) to the Identified Asset not so contributed.  In no event shall the Company (or any
subsidiary of the Company) pay more than $16,000,000 in the aggregate or make
any other payment or provide any other economic consideration to reduce the
principal amount of the mortgage related to 110 N. Wacker Drive, Chicago, Illinois.


 


(b)           The GGO Common
Share Amount of shares of GGO Common Stock, representing all of the outstanding
capital stock of GGO (other than shares of GGO Common Stock to be issued (x) pursuant
to Section 2.2 of this Agreement, (y) to the
Fairholme/Pershing Investors pursuant to Section 2.2 of the
Fairholme/Pershing Agreements and (z) upon exercise of the GGO Warrants
and the warrants issued to the Fairholme/Pershing Investors pursuant to the
Fairholme/Pershing Agreements), shall be distributed, on or prior to the
Effective Date, to the shareholders of the Company (pre-issuance of the Shares)
on a pro rata basis and holders of UPREIT Units (the “GGO Share Distribution”).


 


(c)           It is agreed
that neither the Company nor any of its Subsidiaries shall be required to pay
or cause payment of any fees or make any financial accommodations to obtain any
third-party consent, approval, waiver or other permission for the contribution
contemplated by Section


 


5

















 


2.1(a), or to seek any such
consent, approval, waiver or other permission that is inapplicable to the
Company or any of its Debtor Subsidiaries pursuant to the Bankruptcy Code.


 


(d)           The parties
currently contemplate that the GGO Share Distribution will be structured as a “tax
free spin-off” under the Code.  To the
extent that the Company and Purchaser jointly determine that it is desirable
for the GGO Share Distribution to be structured as a taxable dividend, the
parties will work together to structure the transaction to allow for such
outcome.


 


(e)           With respect to
the Columbia Master Planned Community (the “CMPC”), it is the intention
of the parties that office and mall assets currently producing any material
amount of income at the CMPC (including any associated right of access to
parking spaces) will be retained by the Company and the remaining non-income
producing assets at the CMPC will be transferred to GGO (including rights to
develop and/or redevelop (as appropriate) the  remainder of the CMPC).  On or prior to the Effective Date, the
Company and GGO shall enter into a mutually satisfactory development and
cooperation agreement with respect to the CMPC, which agreement shall provide, among
other things, that GGO shall grant mutually satisfactory easements, to the
extent not already granted, such that the office buildings retained by GGP (as
provided above) continuously shall have access to parking spaces appropriate
for such office buildings.


 


SECTION 2.2                 Purchase of GGO
Common Stock.


 


(a)           On the terms
and subject to the conditions set forth herein, the Plan shall provide that at
the Closing, Purchaser shall purchase from GGO, and GGO shall sell to
Purchaser, 2,625,000 shares of GGO Common Stock (the “GGO Shares”), for
a price per share equal to $47.619048 (the “GGO Per Share Purchase Price”
and such $125,000,000 aggregate purchase price, the “GGO Purchase Price”).  At the Closing the Purchasers shall cause the
GGO Purchase Price to be paid by wire transfer of immediately available U.S.
Dollar funds to such account or accounts as the Company shall have designated
in writing prior to the Closing.


 


(b)           All GGO Shares
shall be delivered with any and all issue, stamp, transfer or similar taxes or
duties payable in connection with such delivery duly paid by GGO to the extent
required under the Confirmation Order or applicable Law.


 


(c)           Purchaser, in
its sole discretion, may designate that some or all of the GGO Shares be issued
in the name of, and delivered to, one or more Brookfield Consortium Members in
accordance with and subject to the Designation Conditions.


 


ARTICLE III


 


REPRESENTATIONS AND
WARRANTIES OF THE COMPANY


 


The Company represents and warrants to Purchaser, as
set forth below, except (i) as set forth in the Company’s Annual Report on
Form 10-K for the year ended December 31, 2009 (but not in documents
filed as exhibits thereto or documents incorporated by reference therein) filed
with the SEC on March 1, 2010 (other than in any “risk factor” disclosure
or any other forward-looking disclosures contained in such reports under the
headings “Risk Factors” or “Cautionary 


 


6

















 


Note” or any similar sections) or (ii) as set
forth in the disclosure schedule delivered by the Company to Purchaser on the
date of this Agreement (the “Company Disclosure Letter”):


 


SECTION 3.1                 Organization
and Qualification.  The Company
and each of its direct and indirect Significant Subsidiaries is duly organized
and is validly existing as a corporation or other form of entity, where
applicable, in good standing under the Laws of their respective jurisdictions
of organization, with the requisite power and authority to own, operate or
manage its properties and conduct its business as currently conducted, subject,
as applicable, to the restrictions that result from any such entity’s status as
a debtor-in-possession under Chapter 11, except to the extent the failure of
such Significant Subsidiary to be in good standing (to the extent the concept
of good standing is applicable in its jurisdiction of organization) would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.  The Company and each of
its Significant Subsidiaries has been duly qualified as a foreign corporation
or other form of entity for the transaction of business and, where applicable,
is in good standing under the Laws of each other jurisdiction in which it owns,
manages, operates or leases properties or conducts business so as to require
such qualification, except to the extent the failure to be so qualified or,
where applicable, be in good standing would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


SECTION 3.2                 Corporate Power
and Authority.


 


(a)           Subject to the
authorization of the Bankruptcy Court, which shall be contained in the
Confirmation Order, and the expiration or waiver by the Bankruptcy Court of the
14-day period set forth in Bankruptcy Rule 3020(e) following entry of
the Confirmation Order, the Company has the requisite power and authority to
enter into, execute and deliver this Agreement and to perform its obligations
hereunder (except with respect to (i) the issuance of the Warrants, (ii) the
provisions of the Approval Order and (iii) Article IX
hereof).  The Company has taken all
necessary corporate action required for the due authorization, execution,
delivery and performance by it of this Agreement.


 


(b)           Subject to the
entry of the Approval Order, the Company has the requisite power and authority
to (i) issue the Warrants (assuming the accuracy of the representations of
Purchaser contained in Exhibit D), (ii) perform its
obligations pursuant to the provisions of the Approval Order and (iii) Article IX
hereof.  No approval by any
securityholders of the Company or any Subsidiary of the Company is required in
connection with the issuance of the Warrants or the issuance of the shares of
Common Stock upon exercise of the Warrants.


 


(c)           The Company has
received written confirmation from the NYSE that the shares of New Common Stock
or other Equity Securities issuable by the Company to Purchaser and each
Subscribing Entity in connection with each Subscribing Entity’s exercise of its
Subscription Rights contemplated by Section 5.9(a) hereof
shall not require stockholder approval and shall be eligible for listing on the
NYSE in the hands of Purchaser without any requirement for stockholder
approval, in each case, during the five (5) year period following the
Closing Date.


 


7

















 


SECTION 3.3                 Execution and
Delivery; Enforceability.


 


(a)           This Agreement
has been duly and validly executed and delivered by the Company, and subject to
the authorization of the Bankruptcy Court, which shall be contained in the
Confirmation Order, and the expiration or waiver by the Bankruptcy Court of the
14-day period set forth in Bankruptcy Rule 3020(e) following entry of
the Confirmation Order, shall constitute the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at Law or in equity) (except with respect to (i) the
issuance of the Warrants, (ii) the provisions of the Approval Order and (iii) Article IX
hereof).


 


(b)           Subject to the
entry of the Approval Order, the provisions of this Agreement relating to (i) the
issuance of the Warrants, (ii) the provisions of the Approval Order and (iii) Article IX
hereof shall constitute the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.


 


SECTION 3.4                 Authorized
Capital Stock.  As of the
date of this Agreement, the authorized capital stock of the Company consists of
875,000,000 shares of Common Stock and of 5,000,000 shares of preferred
stock.  The issued and outstanding
capital stock of the Company and the shares of Common Stock available for grant
pursuant to the Company’s 1993 Stock Incentive Plan, 1998 Stock Incentive Plan
and 2003 Stock Incentive Plan (collectively, the “Company Option Plans”)
or otherwise as of March 26, 2010 (the “Measurement Date”) is set
forth on Section 3.4 of the Company Disclosure Letter.  From the Measurement Date to the date of this
Agreement, other than in connection with the issuance of shares of Common Stock
pursuant to the exercise of options outstanding as of the Measurement Date,
there has been no change in the number of outstanding shares of capital stock
of the Company or the number of outstanding Equity Securities (as defined
below).  Except as set forth on Section 3.4
of the Company Disclosure Letter, on the Measurement Date, there was not
outstanding, and there was not reserved for issuance, any (i) share of
capital stock or other voting securities of the Company or its Significant
Subsidiaries; (ii) security of the Company or its Subsidiaries convertible
into or exchangeable or exercisable for shares of capital stock or voting
securities of the Company or its Significant Subsidiaries; (iii) option or
other right to acquire from the Company or its Subsidiaries, or obligation of
the Company or its Subsidiaries to issue, any shares of capital stock, voting
securities or security convertible into or exercisable or exchangeable for
shares of capital stock or voting securities of the Company or its Significant
Subsidiaries, as the case may be; or (iv) equity equivalent interest in
the ownership or earnings of the Company or its Significant Subsidiaries or
other similar right, in each case to which the Company or a Significant
Subsidiary is a party (the items in clauses (i) through (iv) collectively,
“Equity Securities”).  Other than
as set forth on Section 3.4 of the Company Disclosure Letter or as
contemplated by this Agreement, or pursuant to Contracts entered into by the
Company after the date hereof and prior to the Closing that are otherwise not
inconsistent with Purchaser’s rights hereunder and with respect to the
transactions contemplated hereby, and do not confer on any other Person rights
that are superior to those received by Purchaser hereunder or pursuant to the
transactions contemplated hereby other than rights and terms that are
customarily granted to holders of any such Equity Securities so issued and not
customarily granted in transactions such as the transactions contemplated
hereby, there is no outstanding obligation of the Company or its 


 


8

















 


Subsidiaries to repurchase, redeem or otherwise
acquire any Equity Security.  Other than
as set forth on Section 3.4 of the Company Disclosure Letter or as
contemplated by this Agreement, or pursuant to Contracts entered into by the
Company in connection with the issuance of Equity Securities after the date
hereof and prior to the Closing that are otherwise not inconsistent with
Purchaser’s rights hereunder and with respect to the transactions contemplated
hereby, and do not confer on any other Person rights that are superior to those
received by Purchaser hereunder or pursuant to the transactions contemplated
hereby other than rights and terms that are customarily granted to holders of
any such Equity Securities so issued and not customarily granted in
transactions such as the transactions contemplated hereby, there is no
stockholder agreement, voting trust or other agreement or understanding to
which the Company is a party or by which the Company is bound relating to the
voting, purchase, transfer or registration of any shares of capital stock of
the Company or preemptive rights with respect thereto.  Section 3.4 of the Company
Disclosure Letter sets forth a complete and accurate list of the outstanding
Equity Securities of the Company as of the Measurement Date, including the
applicable conversion rates and exercise prices (or, in the case of options to
acquire Common Stock, the weighted average exercise price) relating to the
conversion or exercise of such Equity Securities into or for Common Stock.


 


SECTION 3.5                 Issuance.


 


(a)           Subject to the
authorization of the Bankruptcy Court, which shall be contained in entry of the
Confirmation Order, and the expiration or waiver by the Bankruptcy Court of the
14-day period set forth in Bankruptcy Rule 3020(e) following entry of
the Confirmation Order, the issuance of the Shares and the New Warrants has
been duly and validly authorized. 
Subject to the entry of the Approval Order and assuming the accuracy of
the representations of Purchaser contained in Exhibit D, the
issuance of the Warrants is duly and validly authorized.  When the Shares are issued and delivered in
accordance with the terms of this Agreement against payment therefor, the
Shares shall be duly and validly issued, fully paid and non-assessable and free
and clear of all taxes, liens, pre-emptive rights, rights of first refusal and
subscription rights, other than rights and restrictions under this Agreement,
the Non-Control Agreement and applicable state and federal securities Laws.  When the Warrants and the New Warrants are
issued and delivered in accordance with the terms of this Agreement, the
Warrants and New Warrants shall be duly and validly issued and free and clear
of all taxes, liens, pre-emptive rights, rights of first refusal and subscription
rights, other than rights and restrictions under this Agreement, the terms of
the Warrants and New Warrants and under applicable state and federal securities
Laws.  When the shares of Common Stock
issuable upon the exercise of the Warrants and the shares of New Common Stock
issuable upon the exercise of the New Warrants are issued and delivered against
payment therefor, the shares of Common Stock and New Common Stock, as
applicable, shall be duly and validly issued, fully paid and non-assessable and
free and clear of all taxes, liens, pre-emptive rights, rights of first refusal
and subscription rights, other than rights and restrictions under this
Agreement, the Non-Control Agreement and applicable state and federal
securities Laws.


 


(b)           Subject to the
authorization of the Bankruptcy Court, which shall be contained in the entry of
the Confirmation Order, and the expiration or waiver by the Bankruptcy Court of
the 14-day period set forth in Bankruptcy Rule 3020(e) following
entry of the Confirmation Order, when the GGO Shares and the GGO Warrants are
issued, the GGO Shares and GGO Warrants 


 


9

















 


shall be duly and validly authorized, duly and
validly issued, fully paid and non-assessable and free and clear of all taxes,
liens, pre-emptive rights, rights of first refusal and subscription rights,
other than rights and restrictions under this Agreement and under applicable
state and federal securities Laws.  When
the shares of GGO Common Stock issuable upon the exercise of the GGO Warrants
are issued and delivered against payment therefor, the shares of GGO Common
Stock shall be duly and validly issued, fully paid and non-assessable and free
and clear of all taxes, liens, pre-emptive rights, rights of first refusal and
subscription rights, other than rights and restrictions under this Agreement
and under applicable state and federal securities Laws.


 


SECTION 3.6                 No Conflict.


 


(a)           Subject to (i) the
receipt of the consents set forth on Section 3.6 of the Company
Disclosure Letter, (ii) such authorization as is required by the
Bankruptcy Court or the Bankruptcy Code, which shall be contained in the entry
of the Confirmation Order, and the expiration, or waiver by the Bankruptcy
Court, of the 14-day period set forth in Bankruptcy Rule 3020(e) following
entry of the Confirmation Order, (iii) any provisions of the Bankruptcy
Code that override, eliminate or abrogate such consents or as may be ordered by
the Bankruptcy Court and (iv) the ability to employ the alternatives
contemplated by Section 2.1 of the Agreement, the execution and
delivery (or, with respect to the Plan, the filing) by the Company of this
Agreement and the Plan, the performance by the Company of its respective
obligations under this Agreement and compliance by the Company with all of the
provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein, (x) shall not conflict with, or result in
a breach or violation of, any of the terms or provisions of, or constitute a
default under, or result in the acceleration of, or the creation of any lien
under, or give rise to any termination right under, any Contract to which the
Company or any of the Company’s Subsidiaries is a party or by which any of
their material assets are subject or encumbered, (y) shall not result in
any violation or breach of any terms, conditions or provisions of the
certificate of incorporation or bylaws of the Company, or the comparable
organizational documents of the Company’s Subsidiaries, and (z) shall not
conflict with or result in any violation or breach of, or any termination or
impairment of any rights under, any statute or any license, authorization,
injunction, judgment, order, decree, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties or assets, except, in the
case of each of clauses (x) and (z) above, for any such conflict,
breach, acceleration, lien, termination, impairment, failure to comply, default
or violation that would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect (except with respect to (i) the
issuance of the Warrants and (ii) the provisions of the Approval Order and
(iii) Article IX hereof).


 


(b)           Subject to the
entry of the Approval Order, (i) the issuance of the Warrants (assuming
the accuracy of the representations of Purchaser contained in Exhibit D),
(ii) the performance by the Company of its respective obligations under
the Approval Order and compliance by the Company with all of the provisions
thereof, and (iii) the performance by the Company of respective
obligations under Article IX hereof (x) shall not conflict
with, or result in a breach or violation of, any of the terms or provisions of,
or constitute a default under, or result in the acceleration of, or the
creation of any lien under, or give rise to any termination right under, any
Contract, (y) shall not result in any violation or breach of any terms,
conditions or provisions of the certificate of incorporation or bylaws of the
Company, or the comparable 


 


10

















 


organizational documents of the Company’s
Subsidiaries, and (z) shall not conflict with or result in any violation
or breach of, or any termination or impairment of any rights under, any statute
or any license, authorization, injunction, judgment, order, decree, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its Subsidiaries or any of their respective properties or
assets, except, in the case of each of clauses (x) and (z) above, for
any such conflict, breach, acceleration, lien, termination, impairment, failure
to comply, default or violation that would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.


 


SECTION 3.7                 Consents and
Approvals.


 


(a)           No consent,
approval, authorization, order, registration or qualification of or with any
Governmental Entity having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties is required for (i) (1) the
issuance and delivery of the New Warrants, (2) the issuance, sale and
delivery of Shares, (3) the issuance and delivery of the Warrants, (4) the
issuance, sale and delivery of the GGO Shares, (5) the issuance and
delivery of the GGO Warrants, (6) the issuance of New Common Stock upon
exercise of the New Warrants, (7) the issuance of GGO Common Stock upon
exercise of the GGO Warrants and (8) the issuance of Common Stock upon
exercise of the Warrants and (ii) the execution and delivery by the
Company of this Agreement or the Plan and performance of and compliance by the
Company with all of the provisions hereof and thereof and the consummation of
the transactions contemplated herein and therein, except (A) such
authorization as is required by the Bankruptcy Court or the Bankruptcy Code,
which shall be contained in the entry of the relevant Court Order, and the
expiration, or waiver by the Bankruptcy Court, of the 14-day period set forth
in Bankruptcy Rule 3020(e) following entry of the Confirmation Order,
as applicable (except with respect to (i) the issuance of the Warrants, (ii) the
provisions of the Approval Order and (iii) Article IX hereof),
(B) filings required under, and compliance with (other than shareholder
approval requirements in respect of the issuance of the Warrants), the
applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder, the Securities Act and the rules and regulations
promulgated thereunder, and the rules of the New York Stock Exchange, and (C) such
other consents, approvals, authorizations, orders, registrations or
qualifications that, if not obtained, made or given, would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.


 


(b)           No consent,
approval, authorization, order, registration or qualification of or with any
Governmental Entity having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties is required for (1) the
issuance and delivery of the Warrants, (2) the performance of and
compliance by the Company with all of the provisions of the Approval Order, and
(3) the performance of and compliance by the Company with Article IX
hereof, except (A) the entry of the Approval Order, (B) filings
required under, and compliance with (other than shareholder approval
requirements in respect of the issuance of the Warrants), the applicable requirements
of the Exchange Act and the rules and regulations promulgated thereunder,
the Securities Act and the rules and regulations promulgated thereunder,
and the rules of the New York Stock Exchange, and (C) such other
consents, approvals, authorizations, orders, registrations or qualifications
that, if not obtained, made or given, would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.


 


11
















 


SECTION 3.8                 Company Reports.


 


(a)           The Company has
filed with or otherwise furnished to the Securities and Exchange Commission
(the “SEC”) all material forms, reports, schedules, statements and other
documents required to be filed or furnished by it under the United States
Securities Act of 1933, as amended (the “Securities Act”) or the
Exchange Act since December 31, 2007 (such documents, as supplemented or
amended since the time of filing, and together with all information
incorporated by reference therein, the “Company SEC Reports”).  No Subsidiary of the Company is required to
file with the SEC any such forms, reports, schedules, statements or other
documents pursuant to Section 13 or 15 of the Exchange Act.  As of their respective effective dates (in the
case of Company SEC Reports that are registration statements filed pursuant to
the requirements of the Securities Act) and as of their respective filing dates
(in the case of all other Company SEC Reports), except as and to the extent
modified, amended, restated, corrected, updated or superseded by any subsequent
Company SEC Report filed and publicly available prior to the date of this
Agreement, the Company SEC Reports (i) complied in all material respects
with the applicable requirements of the Securities Act and the Exchange Act,
and the rules and regulations of the SEC promulgated thereunder applicable
to such Company SEC Reports, and  (ii) did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.


 


(b)           The Company
maintains a system of “internal controls over financial reporting” (as defined
in Rules 13a-15(f) and 15a-15(f) under the Exchange Act) that
provides reasonable assurance regarding the reliability of the Company’s
financial reporting and the preparation of the Company’s financial statements
for external purposes in accordance with GAAP and that includes policies and procedures
that (i) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets
of the Company, (ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in
accordance with GAAP, and that receipts and expenditures of the Company are
being made only in accordance with authorizations of management and directors
of the Company, and (iii) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition
of the Company’s assets that could have a material effect on the Company’s
financial statements.


 


(c)           The Company
maintains a system of “disclosure controls and procedures” (as defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) that is reasonably designed to ensure
that information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the rules and forms of the
SEC, and that information relating to the Company is accumulated and
communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications of the
Chief Executive Officer and Chief Financial Officer of the Company required
under the Exchange Act with respect to such reports.


 


(d)           Since December 31,
2008, the Company has not received any oral or written notification of a “material
weakness” in the Company’s internal controls over financial reporting.  


 


12

















 


The term “material weakness” shall have the meaning
assigned to it in the Statements of Auditing Standards 112 and 115, as in
effect on the date hereof.


 


(e)           Except as and
to the extent modified, amended, restated, corrected, updated or superseded by
any subsequent Company SEC Report filed and publicly available prior to the
date of this Agreement, the audited consolidated financial statements and the
unaudited consolidated interim financial statements (including any related
notes) included in the Company SEC Reports fairly present in all material
respects, the consolidated financial position of the Company and its
consolidated Subsidiaries as of the dates thereof and the consolidated results
of their operations and their consolidated cash flows for the periods set forth
therein (subject, in the case of financial statements for quarterly periods, to
normal year-end adjustments) and were prepared in conformity with GAAP
consistently applied during the periods involved (except as otherwise disclosed
in the notes thereto).


 


SECTION 3.9                 No Undisclosed
Liabilities.  None of the
Company or its Subsidiaries has any material liabilities (whether absolute,
accrued, contingent or otherwise) required to be reflected or reserved against
on a consolidated balance sheet of the Company prepared in accordance with
GAAP, except for liabilities (i) reflected or reserved against or provided
for in the Company’s consolidated balance sheet as of December 31, 2009 or
disclosed in the notes thereto, included in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2009, (ii) incurred in the ordinary
course of business consistent with past practice since the date of such balance
sheet, (iii) for fees and expenses incurred in connection with the
Bankruptcy Cases, which have been estimated and included in the Admin/Priority
Claims identified in the Plan Summary Term Sheet; provided, however,
that such amount is an estimate and actual results may be higher or lower, (iv) incurred
in the ordinary course of performing this Agreement and certain other asset
sales, transfers and other actions permitted under this Agreement and (v) other
liabilities at Closing as contemplated by the Plan Summary Term Sheet.


 


SECTION 3.10               No Material
Adverse Effect.  Since December 31,
2009, there has not occurred any event, fact or circumstance that has had or
would reasonably be expected to have, individually, or in the aggregate, a
Material Adverse Effect.


 


SECTION 3.11               No Violation or
Default:  Licenses and Permits.  The Company and its Subsidiaries (a) are
in compliance with all Laws, statutes, ordinances, rules, regulations, orders,
judgments and decrees of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective properties, and (b) has not received written notice of any
alleged material violation of any of the foregoing except, in the case of  each of clauses (a) and (b) above,
for any such failure to comply, default or violation that would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect or as may be the result of the Company’s or any of its
Subsidiaries’ Chapter 11 filing or status as a debtor-in-possession under
Chapter 11.  Subject to the restrictions
that result from the Company’s or any of its Subsidiaries’ status as a
debtor-in-possession under Chapter 11 (including that in certain instances the
Company’s or such Subsidiary’s conduct of its business requires Bankruptcy
Court approval), each of the Company and its Subsidiaries holds all material
licenses, franchises, permits, certificates of occupancy, consents,
registrations, certificates and other governmental and regulatory permits,
authorizations and approvals required for the operation of the business as
currently conducted by it and for the ownership, lease or operation 


 


13

















 


of its material assets except, in each case, where
the failure to possess or make the same would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.12               Legal
Proceedings.  There are
no legal, governmental or regulatory investigations, actions, suits or
proceedings pending or, to the Knowledge of the Company, threatened against the
Company or any of its Subsidiaries which, individually, if determined adversely
to the Company or any of its Subsidiaries, would reasonably be expected to have
a Material Adverse Effect.


 


SECTION 3.13               Investment
Company Act.  The Company
is not, and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, shall not be required to register as an “investment
company” or an entity “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the SEC thereunder.  As of
the Effective Date, GGO, after giving effect to the offering and sale of the
GGO Shares and the application of the proceeds thereof, shall not be required
to register as an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations of the SEC thereunder.


 


SECTION 3.14               Compliance With
Environmental Laws.  Except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (i) each of the Company and its Subsidiaries are
and have been in compliance with and each of the Company Properties are and
have been maintained in compliance with, any and all applicable federal, state,
local and foreign Laws relating to the protection of the environment or natural
resources, human health and safety as such relates to the environment, or the
presence, handling, or release of Hazardous Materials (collectively, “Environmental
Laws”), which compliance includes obtaining, maintaining and complying with
all permits, licenses or other approvals required under Environmental Laws to
conduct operations as presently conducted, and no action is pending or, to the
Knowledge of the Company, threatened that seeks to repeal, modify, amend, revoke,
limit, deny renewal of, or otherwise appeal or challenge any such permits,
licenses or other approvals, (ii) none of the Company or its Subsidiaries
have received any written notice of, and none of the Company Properties have
been the subject of any written notice received by the Company or any of its
Subsidiaries of, any actual or potential liability or violation for the
presence, exposure to, investigation, remediation, arrangement for disposal, or
release of any material classified, characterized or regulated as hazardous,
toxic, pollutants, or contaminants under Environmental Laws, including
petroleum products or byproducts, radioactive materials, asbestos-containing
materials, radon, lead-containing materials, polychlorinated biphenyls, mold,
and hazardous building materials (collectively, “Hazardous Materials”), (iii) none
of the Company and its Subsidiaries are a party to or the subject of any
pending, or, to the Knowledge of the Company, threatened, legal proceeding
alleging any liability, responsibility, or violation under any Environmental
Laws with respect to their past or present facilities or their respective
operations, (iv) none of the Company and its Subsidiaries have released
Hazardous Materials on any real property in a manner that would reasonably be
expected to result in an environmental claim or liability against the Company
or any of its Subsidiaries or Affiliates, (v) none of the Company
Properties is the subject of any pending, or, to the Knowledge of the Company,
threatened, legal proceeding alleging any liability, responsibility, or
violation under any Environmental Laws, and (vi) to the Knowledge of the
Company, there has been no release of 


 


14

















 


Hazardous Materials on, from, under, or at any of
the Company Properties that would reasonably be expected to result in an
environmental claim or liability against the Company or any of its Subsidiaries
or Affiliates.


 


SECTION 3.15               Company Benefit
Plans.


 


(a)           Except as would
not, individually or in the aggregate, have a Material Adverse Effect, each
Company Benefit Plan is in compliance in design and operation in all material
respects with all applicable provisions of ERISA and the U.S. Internal Revenue
Code of 1986, as amended (the “Code”) and each Company Benefit Plan that
is intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter from the Internal Revenue Service
with respect to its qualified status under Section 401(a) of the Code
and its related trust’s exempt status under Section 501(a) of the
Code and the Company is not aware of any circumstances likely to result in the
loss of the qualification of any such plan under Section 401(a) of
the Code.


 


(b)           Except as would
not, individually or in the aggregate, have a Material Adverse Effect, with
respect to each Company Benefit Plan that is subject to Title IV or
Section 302 of ERISA or Section 412 or 4971 of the Code:  (A) no Company Benefit Plan has failed
to satisfy the minimum funding standard (within the meaning of Sections 412 and
430 of the Code or Section 302 of ERISA) applicable to such Company
Benefit Plan, whether or not waived and no application for a waiver of the
minimum funding standard with respect to any Company Benefit Plan has been
submitted; (B) no reportable event within the meaning of Section 4043(c) of
ERISA for which the 30-day notice requirement has not been waived has occurred
(other than in connection with the Bankruptcy Cases); (C) no liability
(other than for premiums to the Pension Benefit Guaranty Corporation (the “PBGC”))
under Title IV of ERISA has been or is expected to be incurred by the
Company or any entity that is required to be aggregated with the Company
pursuant to Section 414 of the Code (an “ERISA Affiliate”);
(D) the PBGC has not instituted proceedings to terminate any such plan or
made any inquiry which would reasonably be expected to lead to termination of
any such plan, and, no condition exists that presents a risk that such
proceedings will be instituted or which would constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any such plan; and (E) no Company Benefit Plan is,
or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of
ERISA or Section 430(i)(4) of the Code).


 


(c)           Except as would
not, individually or in the aggregate, have a Material Adverse Effect, with
respect to each Company Benefit Plan maintained primarily for the benefit of
current or former employees, officers or directors employed, or otherwise
engaged, outside the United States (each a “Foreign Plan”), excluding
any Foreign Plans that are statutorily required, government sponsored or not
otherwise sponsored, maintained or controlled by the Company or any of its
Significant Subsidiaries (“Excluded Non-US Plans”):  (A) (1) all employer and employee
contributions required by Law or by the terms of the Foreign Plan have been
made, and all liabilities of the Company and its Significant Subsidiaries have
been satisfied, or, in each case accrued, by the Company and its Significant
Subsidiaries in accordance with generally accepted accounting principles, and (2) the
Company and its Significant Subsidiaries are in compliance with all
requirements of applicable Law and the terms of such Foreign Plan; (B) as
of the Effective Date, the fair market value of the assets of each funded
Foreign Plan, or the book 


 


15

















 


reserve established for each Foreign Plan, together
with any accrued contributions, is sufficient to procure or provide for the
accrued benefit obligations with respect to all current and former participants
in such Foreign Plan determined on an ongoing basis (rather than on a plan
termination basis) according to the actuarial assumptions and valuations used
to account for such obligations as of the Effective Date in accordance with
applicable generally accepted accounting principles; and (C) the Foreign
Plan has been registered as required and has been maintained in good standing
with applicable regulatory authorities.


 


SECTION 3.16               Labor and
Employment Matters.  (i) Neither
the Company nor any of its Significant Subsidiaries is a party to or bound by
any collective bargaining agreement or any labor union contract, nor are any
employees of the Company or any of its Significant Subsidiaries represented by
a works council or a labor organization (other than any industry-wide or
statutorily mandated agreement in non-U.S. jurisdictions); (ii) to the
Knowledge of the Company, as of the date hereof, there are no activities or
proceedings by any labor union or labor organization to organize any employees
of the Company or any of its Significant Subsidiaries or to compel the Company
or any of its Significant Subsidiaries to bargain with any labor union or labor
organization; and (iii), except as would not, individually or in the aggregate,
have a Material Adverse Effect, there is no pending or, to the Knowledge of the
Company, threatened material labor strike, lock-out, walkout, work stoppage,
slowdown, demonstration, leafleting, picketing, boycott, work-to-rule campaign,
sit-in, sick-out, or similar form of organized labor disruption.


 


SECTION 3.17               Insurance.  The Company maintains for itself and its
Subsidiaries insurance policies in those amounts and covering those risks, as
in its judgment, are reasonable for the business and assets of the Company and
its Subsidiaries.


 


SECTION 3.18               No Unlawful
Payments.  No action
is pending or, to the Knowledge of the Company, is threatened against the
Company or any of its Subsidiaries or Affiliates, or any of their respective
directors, officers, or employees resulting from any (a) use of corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (b) direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds, (c) violations of any provision of the Foreign Corrupt
Practices Act of 1977 or any other applicable local anti-bribery or
anti-corruption Laws in any relevant jurisdictions or (d) other unlawful
payment, except in any such case, as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


SECTION 3.19               No Broker’s
Fees.  Other than pursuant to
agreements (including amendments thereto) by and between the Company and each
of UBS Securities LLC and Miller Buckfire & Co., LLC, or otherwise
disclosed to Purchaser prior to the date hereof and which fees and expenses
would be included in the definition of “Permitted Claims”, none of the Company
or any of its Subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise
to a valid claim against the Company or any of its Subsidiaries for an
investment banking fee, finder’s fee or like payment in respect of the sale of
the Shares contemplated by this Agreement. 
None of the Company or any of its Subsidiaries is a party to any
contract, agreement or understanding with any Person that would give rise to a
valid claim against Purchaser for a brokerage commission, finder’s fee,
investment banking fee or like payment in connection with the transactions
contemplated by this Agreement.


 


16

















 


SECTION 3.20               Real and
Personal Property.


 


(a)           Section 3.20(a) of
the Company Disclosure Letter sets forth a true, correct and complete list in
all material respects of each material real property asset owned or leased (as
lessee), directly or indirectly, in whole or in part, by the Company and/or any
of its Subsidiaries (other than Identified Assets) (each such property that is
not a Non-Controlling Property and has a fair market value (in the reasonable
determination of the Company) in excess of $10,000,000 is individually referred
to herein as “Company Property” and collectively referred to herein as
the “Company Properties”).  All
Company Properties, Non-Controlling Properties and the Identified Assets are
reflected in accordance with the applicable rules and regulations of the
SEC in the Annual Report in Form 10-K as of, and for the year ended, December 31,
2009 (the “Most Recent Statement”).


 


(b)           Except (i) for
such breach of this Section 3.20(b) as may be caused fully or
substantially by the third party member or partner in any Joint Venture,
without the Knowledge or consent of the Company or any of its Subsidiaries or (ii) as
would not individually or in the aggregate be reasonably expected to have a
Material Adverse Effect, the Company or one of its Subsidiaries owns good and
valid fee simple title or valid and enforceable leasehold interests (except
with respect to the Company’s right to reject any such ground lease as part of
a Bankruptcy plan of reorganization for the remaining Debtor entities and
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at Law or in equity)), as applicable, to
each of the Company Properties, in each case, free and clear of liens,
mortgages or deeds of trust, claims against title, charges that are liens or
other encumbrances on title, rights of way, restrictive covenants, declarations
or reservations of an interest in title (collectively, “Encumbrances”),
except for the following (collectively, the “Permitted Title Exceptions”):  (i) Encumbrances relating to the DIP
Loan and to debt obligations reflected in the Company’s financial statements
and the notes thereto (including with respect to debt obligations which are not
consolidated) or otherwise disclosed to Purchaser in Section 3.20(g)(i) of
the Company Disclosure Letter, (ii) Encumbrances that result from any
statutory or other liens for Taxes or assessments that are not yet due or
delinquent or the validity of which is being contested in good faith by
appropriate proceedings and for which a sufficient and appropriate reserve has
been set aside for the full payment thereof, (iii) any contracts, or other
occupancy agreements to third parties for the occupation or use of portions of
the Company Properties by such third parties in the ordinary course of the
business of the Company or its Subsidiaries, (iv) Encumbrances imposed or
promulgated by Law or any Governmental Entity, including zoning, entitlement
and other land use and environmental regulations, (v) Encumbrances disclosed
on existing title policies and current title insurance commitments or surveys
made available to Purchaser, (vi) Encumbrances on the landlord’s fee
interest at any Company Property where the Company or its Subsidiary is the
tenant under any ground lease, provided that, except as disclosed to Purchaser
in Section 3.20(b)(ii) of the Company Disclosure Letter,
neither the Company nor any of its Subsidiaries have received a notice
indicating the intention of the landlord under such ground lease, or of any
other Person, to (1) exercise a right to terminate such ground lease,
evict the lessee or otherwise collect the sub-rents thereunder, or (2) take
any other action that would be reasonably likely to result in a termination of
such ground lease, (vii) any cashiers’, landlords’, workers’, mechanics’, 


 


17

















 


carriers’, workmen’s, repairmen’s and materialmen’s
liens and other similar liens (1) incurred in the ordinary course of
business which (A) are being challenged in good faith by appropriate
proceedings and for which a sufficient and appropriate reserve has been set
aside for the full payment thereof or (B) have been otherwise fully bonded
and discharged of record or for which a sufficient and appropriate reserve has
been set aside for the full payment thereof or (2) disclosed on Section 3.20(b)(i) of
the Company Disclosure Letter  and (viii) any
other easements, rights-of-way, restrictions (including zoning restrictions),
covenants, encroachments, protrusions and other similar charges or
encumbrances, and title limitations or title defects, if any, that (I) are
customary for office, industrial, master planned communities and retail
properties or (II) individually or in the aggregate, would not be
reasonably expected to have a Material Adverse Effect.  Other than as set forth on Section 3.20(b)(ii) of
the Company Disclosure Letter, neither the Company nor any of its Subsidiaries
has received a written notice of a material default, beyond any applicable
grace and cure periods, of or under any Permitted Title Exceptions, except (w) as
may have been caused fully or substantially by the third party member or
partner in any Joint Venture, without the Knowledge or consent of the Company
or any of its Subsidiaries (x) as a result of the filing of the Bankruptcy
Cases, (y) where the Permitted Title Exceptions are in and of themselves
evidence of default (such as mechanics’ liens and recorded notices of default)
or (z) as would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect; provided, however, that where the
Company has otherwise represented and warranted to Purchaser hereunder
(including as set forth on the Company Disclosure Letter pursuant to such
representations and warranties) with respect to the Company’s Knowledge of, the
Company’s receipt of notice of or the existence of a default in connection with
a particular category of Permitted Title Exceptions, such categories of
Permitted Title Exceptions shall not be included in the representation set
forth in this sentence (by way of illustration, but not exclusion, the
representations set forth in Section 3.20(f) with respect to
defaults under Material Leases shall be deemed to address the Company’s
representations and warranties with respect to the entire category of Permitted
Title Exceptions detailed in clause (iii) above).


 


(c)           To the extent
available, the Company and its Subsidiaries have made commercially reasonable
efforts to make available or will use commercially reasonable efforts to make
available upon request to Purchaser those policies of title insurance that the
Company or its Subsidiaries have obtained in the last six months.


 


(d)           With respect to
each Company Ground Lease Property, except as set forth on Section 3.20(d) of
the Company Disclosure Letter and except as may have been caused by, or
disclosed in the filing of the Bankruptcy Cases, as of the date hereof, to the
Company’s Knowledge, neither the Company nor any of its Subsidiaries has
received notice of material defaults (including, without limitation, payment
defaults, but limited to those circumstances where such default may grant the
landlord under such ground lease the right to terminate such ground lease,
evict the lessee or otherwise collect the sub-rents thereunder) at such Company
Ground Lease Property beyond any applicable grace and cure periods, except (x) as
would not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect, (y) as may be caused fully or substantially by
the third party member or partner in any Joint Venture, without the Knowledge
or consent of the Company or any of its Subsidiaries and (z) with respect
to any Company Ground Lease Property which is leased by a Subsidiary of the
Company which has consummated a plan of reorganization in the Bankruptcy Cases,
all such material defaults at such Company Ground Lease Property which existed
prior to the effective date of such Person’s 


 


18

















 


plan of reorganization have been or will be cured in
accordance with such plan.  As used
herein the term “Company Ground Lease Property” shall mean any Company
Property having a fair market value (in the reasonable determination of the
Company) in excess of $25,000,000 which is leased by a Subsidiary of the
Company as tenant pursuant to a ground lease. 
With respect to the defaults referenced in clause (z) above, the
Bankruptcy Court approved the Debtors’ assumption of the applicable ground
leases and the fixed cure amounts for such defaults which predated assumption;
provided however, nothing contained herein precludes any Person from raising
issues in the future with respect to defaults that may have predated such
assumption.


 


(e)           Except as set
forth on Section 3.20(e) of the Company Disclosure Letter,
neither the Company nor any of its Subsidiaries is a party to any agreement
relating to the property management (but not including any leasing,
development, construction or brokerage agreements) of any of the Company
Properties by a party other than Company or any wholly owned Company
Subsidiaries, except (i) management agreements that may be terminated
without cause or payment of a termination fee upon no more than 60 days notice
or (ii) as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


(f)            Except as set
forth on Section 3.20(f) of the Company Disclosure Letter, to
the Company’s Knowledge, as of February 15, 2010, (i) each Material
Lease is in full force and effect, (ii) no tenant is in arrears in the
payment of rent, additional rent or any other material charges due under any
Material Lease, and no tenant is materially in default in the performance of
any other obligations under any Material Lease, (iii) no bankruptcy or insolvency
proceeding has been commenced (and is continuing) by or against any tenant
under any Material Lease, and (iv) neither the Company nor any of its
Subsidiaries has received a written notice from a current tenant under any
Material Lease exercising a right to terminate or otherwise cancel its Material
Lease (y) as a result of or in connection with the termination or
cancellation of any other lease, sublease, license or occupancy agreement for
space at any Company Property (each, a “Company Property Lease”), or (z) as
a result of or in connection with any other tenant that occupies, or had
previously occupied, another Company Property Lease, allowing, or having had
allowed, all or any portion of the premises leased pursuant to such other
Company Property Lease to “go dark” or otherwise be abandoned or vacated;
except, (A) in the case of each of clauses (i), (ii) (iii) and (iv) above,
as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, (B) as a result of the filing of the Bankruptcy
Cases or in connection with any Bankruptcy Court approved process and (C) as
may have been caused fully or substantially by the third party member or
partner in any Joint Venture, without the Knowledge or consent of the Company
or its Subsidiaries.  “Material Lease”
means for any Company Property any lease in which the Company or its
Subsidiaries is the landlord, and all amendments, modifications, supplements,
renewals, exhibits, schedules, extensions and guarantees related thereto, (1) to
an “anchor tenant” occupying at least 80,000 square feet with respect to such
Company Property or (2) that is one of the five (5) largest leases,
in terms of gross annual minimum rent, with respect to a Company Property that
has an annual net operating income, as determined in accordance with GAAP
(provided, however, that for purposes of such calculation, the following were
reflected as expenses:  (a) ground
rent payments to a third party and (b) an assumed management fee equal to
3% of base minimum and percentage rent) with respect to the trailing twelve
(12) calendar month period, equal to at least $7,500,000.00.  For purposes of Section 7.1(c), (y) the
representations and warranties made in  Section 3.20(f)(i),
(iii) and (iv), disregarding all qualifications and
exceptions contained therein relating to “materiality” 


 


19

















 


or “Material Adverse Effect”, shall be shall be true
and correct at and as of the Closing Date as if made at and as of the Closing
Date, except for such failures to be true and correct that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect and (z) the representation and warranties contained in Section 3.20(f)(ii),
disregarding all qualifications and exceptions contained therein relating to “materiality”
or “Material Adverse Effect”, shall be true and correct (A) at and as of
the last day of the calendar month that is two (2) calendar months prior
to the calendar month in which the Closing Date occurs as if made at and as of
such date, if the Closing Date occurs on or prior to the fifteenth (15th) day
of a calendar month, or (B) at and as of the fifteenth (15th) day of the
calendar month that is one (1) calendar month prior to the calendar month
in which the Closing Date occurs as if made at and as of such date, if the
Closing Date occurs on or after the sixteenth (16th) day of a calendar month,
except for such failures to be true and correct that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


(g)           With respect to
each Company Property:


 


(i)            As of the date
listed thereunder, Section 3.20(g) of the Company Disclosure Letter
sets forth a true, correct and complete list in all material respects of (i) all
loans (other than the DIP Loan) and other indebtedness secured by a mortgage,
deed of trust, deed to secure debt or indemnity deed of trust in such Company
Property (each, a “Company Mortgage Loan”), (ii) the outstanding
principal balance of each such Company Mortgage Loan, (iii) the rate of
interest applicable to such Company Mortgage Loan and (iv) the maturity
date of such Company Mortgage Loan;


 


(ii)           Except as set
forth in Section 3.20(g) of the Company Disclosure Letter, neither
the Company nor any of its Subsidiaries have received a written notice of
default (beyond any applicable grace or cure periods) in the (y) payment
of interest, principal or other material amount due to the lender under any
Company Mortgage Loan, whether as the primary obligor or as a guarantor thereof
or (z) performance of any other material obligations under any Company
Mortgage Loan, except (i) with respect to (y) and (z) above, as
a result of the filing of the Bankruptcy Cases, or as is prohibited, stayed or
otherwise suspended as a result of the Company’s or any Subsidiary’s Chapter 11
filing or status as a debtor-in-possession under Chapter 11, and (ii) with
respect solely to (z) above, which would not individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect; and


 


(iii)          For purposes of
Section 7.1(c) the representations and warranties made in Section 3.20(g)(i),
disregarding all qualifications and exceptions contained therein relating to “materiality”
or “Material Adverse Effect”, shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date, except for (A) such
inaccuracies caused by sales, purchases, transfers of assets, refinancing or
other actions effected in accordance with, subject to the limitations contained
in, and not otherwise prohibited by, the terms and conditions in this
Agreement, including, without limitation, in Article VII, (B) amortization
payments made pursuant to any applicable Company Mortgage Loans and (C) such
failures to be true and correct that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.


 


20

















 


(h)           To the
Knowledge of the Company, (i) except as set forth on Section 3.20(h) of
the Company Disclosure Letter, neither the Company nor any of its Subsidiaries
has received a written notice exercising an option, “buy-sell” right or other
similar right to purchase a Company Property or any material portion thereof which
has not previously closed, except as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect with
respect to such Company Property and (ii) no Company Property is subject
to a purchase and sale agreement or any similar legally binding agreement to
purchase such Company Property or any material portion thereof (other than (x) with
respect to condominium purchase and sale agreements and purchase and sale and
early occupancy agreements or other similar agreements for the sale of
condominium units at the Natick Nouvelle, (y) with respect to builder lot
purchase agreements and other similar agreements for the sale of vacant lots of
land to builders at Bridgeland and (z) as set forth in (i) above)
which has not previously closed.


 


(i)            The Company has
conducted due inquiry with respect to the representations and warranties made
in Section 3.20(d), Section 3.20(f) and Section 3.20(h).


 


SECTION 3.21               Tax Matters.  Except as disclosed on Section 3.21(a) of
the Company Disclosure Letter:


 


(a)           Except in cases
where the failure of any of the following to be true would not result in a
Material Adverse Effect:  (i) the
Company and each of its Significant Subsidiaries have filed all Tax Returns
required to be filed by applicable Law prior to the date hereof; (ii) all
such Tax Returns were true, complete and correct in all respects and filed on a
timely basis (taking into account any applicable extensions); (iii) the
Company and each of its Significant Subsidiaries have paid all amounts of Taxes
that are due, claimed or assessed by any taxing authority to be due for the
periods covered by such Tax Returns, other than any Taxes for which adequate
reserves (“Adequate Reserves”) have been established in accordance with
GAAP or a claim has been filed in the Bankruptcy Cases; and (iv) all
adjustments of federal U.S. Tax liability of the Company and its Significant
Subsidiaries resulting from completed audits or examinations have been reported
to appropriate state and local taxing authorities and all resulting Taxes
payable to state and local taxing authorities have been paid.  “Taxes” means any U.S. federal, state,
local, or foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Section 59A of the Code), customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.  “Tax
Return” means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof, including, where permitted or
required, combined or consolidated returns for any group of entities that
include the Company or any of its Significant Subsidiaries.


 


(b)           The Company and
each of its REIT Subsidiaries (x) for all taxable years commencing with
the taxable year ended December 31, 2005 through December 31, 2009,
has been subject to taxation as a real estate investment trust within the
meaning of Section 856 of the Code (a “REIT”) and has satisfied all
requirements to qualify as a REIT for such years; (y) has operated since
January 1, 2010 to the date hereof in a manner consistent with the
requirements


 


21
















 


for qualification and taxation as a REIT; and (z) intends
to continue to operate in such a manner as to qualify as a REIT for the current
taxable year.  None of the transactions
contemplated by this Agreement will prevent the Company or any of its REIT Subsidiaries
from so qualifying.  No Subsidiary of the
Company other than a REIT Subsidiary is a corporation for U.S. federal income
tax purposes, other than a corporation that qualifies as a “taxable REIT
subsidiary” within the meaning of Section 856(l) of the Code.  For the purposes of this Agreement, “REIT
Subsidiary” means each of GGP Ivanhoe, Inc., GGP Holding, Inc.,
GGP Holding II, Inc., Victoria Ward, Limited, GGP -Natick Trust and
GGP/Homart, Inc.


 


(c)           Each Company
Subsidiary other than its REIT Subsidiaries that is a partnership, joint
venture, or limited liability company and which has not elected to be a “taxable
REIT subsidiary” within the meaning of Section 856(l) of the Code has
been since its formation treated for U.S. federal income tax purposes as a
partnership or disregarded entity, as the case may be, and not as a corporation
or an association taxable as a corporation, except where failure to do so would
not have a Material Adverse Effect.


 


(d)           Except where
the failure to be true would not have a Material Adverse Effect, the Company
and each of its Significant Subsidiaries have (i) complied in all respects
with all applicable Laws, rules, and regulations relating to the payment and
withholding of Taxes (including withholding and reporting requirements under
sections 1441 through 1464, 3401 through 3406, 6041 and 6049 of the Code and
similar provisions under any other Laws) and (ii) within the time and in
the manner prescribed by Law, withheld from employee wages and paid to the
proper Governmental Entities all amounts required to be withheld and paid over.


 


(e)           Except where
the failure to be true would not have a Material Adverse Effect, no audits or
other administrative proceedings or court proceedings are presently pending or
to the Knowledge of the Company threatened with regard to any Taxes or Tax
Returns of the Company or any of its Significant Subsidiaries, other than any
audit or administrative proceeding relating to Taxes for which a claim has been
filed in a Debtor’s Chapter 11 case or any other audit or administrative or
court proceeding that is not reasonably expected to result in a material Tax
liability to the Company or any of its Significant Subsidiaries.


 


(f)            The Company has
made available to Purchaser complete and accurate copies of all material Tax
Returns requested by Purchaser and filed by or on behalf of the Company or any
of its Significant Subsidiaries for all taxable years ending on or prior to the
Effective Date and for which the statute of limitations has not expired.


 


(g)           There are no
Tax Protection Agreements except for those the breach of which would not
reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any Significant
Subsidiary has any liability for Taxes of any Person under Treasury Regulation
Section 1.1502-6 (or any similar provision of any state, local or foreign
Law), or as a transferee or successor (by contract or otherwise), other than (i) to
a Subsidiary of the Company or (ii) where any such liability would not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.22               Material
Contracts.  Except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, each Material Contract that shall survive the
Bankruptcy Cases is valid and binding on the Company or any of its 


 


22

















 


Subsidiaries, as applicable, and, to the Knowledge
of the Company, on each other Person party thereto, and is in full force and
effect.  Other than as a result of the
commencement of the Bankruptcy Cases, each of the Company and its Subsidiaries
has performed, in all material respects, all obligations required to be
performed by it under each Material Contract that shall survive the Bankruptcy
Cases, except, in each case, as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  Other than those caused as a result of the
filing of the Bankruptcy Cases, neither the Company nor any of its Significant
Subsidiaries is in breach or default of any Material Contract to which it is a
party and which shall survive the Bankruptcy Cases, except, in each case, as
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.  The Company has
made available to Purchaser true, accurate and complete copies of the Material
Contracts as of the date of this Agreement, except for those Material Contracts
available to the public on the website maintained by the SEC.  To the Knowledge of the Company, no party to
any Material Contract that shall survive the Bankruptcy Cases has given written
notice of any action to terminate, cancel, rescind or procure a judicial
reformation of such Material Contract or any material provision thereof, which
termination, cancellation, rescission or reformation would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.  For the avoidance of doubt,
Material Contracts do not include intercompany contracts.


 


SECTION 3.23               Certain
Restrictions on Charter and Bylaws Provisions; State Takeover Laws.


 


(a)           The Company and
the Company Board have taken all appropriate and necessary actions to ensure
that the ownership limitations set forth in Article IV of the Company’s
certificate of incorporation shall not apply to (i) the acquisition of
beneficial ownership by Purchaser and any Brookfield Consortium Member of the
Warrants and the shares of Common Stock issuable upon exercise of the Warrants,
(ii) any antidilution adjustments to those Warrants pursuant to the
Warrant Agreement and (iii) any shares of Common Stock that Purchaser or
any Brookfield Consortium Member may be deemed to own by no actions of its own
and (iv) the acquisition of beneficial ownership of up to an additional
2.5% of the issued and outstanding shares of Common Stock by any Purchaser or
any Brookfield Consortium Member; provided, however, that such
exception to the ownership limitations are only effective as to Purchaser or
any particular Brookfield Consortium Member only so long as (i) the
Company has received executed copies of the representation certificate
contained in Exhibit D from Purchaser or such Brookfield Consortium
Member, it being understood that a Brookfield Consortium Member shall be
required to provide such representations at such times and only at such times
as such Brookfield Consortium Member beneficially owns Common Stock or New
Common Stock in excess of the relevant ownership limit set forth in the
certificate of incorporation of the Company or any stock or other equity
interest owned by such Brookfield Consortium Member in a tenant of the Company
would be treated as constructively owned by Purchaser and (ii) the
representations so provided are true, correct and complete as of the date made
and continue to be true, correct and complete.


 


(b)           The Company
Board  has taken all action necessary to
render inapplicable to Purchaser the restrictions on “business combinations”
set forth in Section 203 of the Delaware General Corporation Law and, to
the knowledge of the Company, any similar “moratorium,” 


 


23

















 


“control share,” “fair price,” “takeover” or “interested
stockholder” law applicable to transactions between Purchaser and the Company.


 


SECTION 3.24               No Other
Representations or Warranties.  Except for the representations and warranties
made by the Company in this Article III, neither the Company nor
any other Person makes any representation or warranty with respect to the
Company or its Subsidiaries or their respective business, operations, assets,
liabilities, condition (financial or otherwise) or prospects, notwithstanding
the delivery or disclosure to Purchaser or any of its Affiliates or
representatives of any documentation, forecasts or other information with
respect to any one or more of the foregoing.


 


ARTICLE IV


 


REPRESENTATIONS AND
WARRANTIES OF PURCHASER


 


Purchaser represents and warrants to the Company as
set forth below:


 


SECTION 4.1                 Organization.  Purchaser is duly organized and is validly
existing and, where applicable, in good standing under the Laws of its
jurisdiction of organization, with the requisite limited liability company
power and authority to undertake and effectuate the transactions contemplated
by this Agreement.  Purchaser has been duly
qualified as a foreign corporation or other form of entity for the transaction
of business and, where applicable, is in good standing under the Laws of each
other jurisdiction in which it operates so as to require such qualification,
except where the failure to be so qualified, licensed or in good standing would
not, individually or in the aggregate, have or be reasonably expected to
materially delay or prevent the consummation of the transactions contemplated
by this Agreement.


 


SECTION 4.2                 Power and Authority.  Purchaser has the requisite power and
authority to enter into, execute and deliver this Agreement and to perform its
obligations hereunder and has taken all necessary action required for the due
authorization, execution, delivery and performance by it of this Agreement.


 


SECTION 4.3                 Execution and
Delivery.  This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes its valid and binding obligation, enforceable against Purchaser in
accordance with its terms.


 


SECTION 4.4                 No Conflict.  The execution and delivery of this Agreement
and the performance by Purchaser of its obligations hereunder and compliance by
Purchaser with all of the provisions hereof and the consummation of the
transactions contemplated herein (i) shall not conflict with, or result in
a breach or violation of, any of the terms or provisions of, or constitute a
default under, or result in the acceleration of, or the creation of any lien
under, or give rise to any termination right under, any material contract to
which Purchaser is a party, (ii) shall not result in any violation or
breach of any provisions of the organizational documents of Purchaser and (iii) shall
not conflict with or result in any violation of, or any termination or material
impairment of any rights under, any statute or any license, authorization,
injunction, judgment, order, decree, rule or regulation of any court or
governmental agency or body having jurisdiction over Purchaser or Purchaser’s
properties or assets, except with respect to each of (i), (ii) and (iii), 


 


24

















 


such conflicts, violations or defaults as would not
be reasonably expected to have a material adverse effect on the ability of
Purchaser to consummate the transactions contemplated hereunder.


 


SECTION 4.5                 Consents and
Approvals.  No consent,
approval, order, authorization, registration or qualification of or with any
Governmental Entity having jurisdiction over Purchaser is required in
connection with the execution and delivery by Purchaser of this Agreement or
the consummation of the transactions contemplated hereby, except such consents,
approvals, orders, authorizations, registration or qualification as would not
reasonably be expected to materially and adversely affect the ability of
Purchaser to perform its obligations under this Agreement.


 


SECTION 4.6                 Compliance with
Laws.  Since the date of its
formation, Purchaser has been in compliance with all Laws applicable to
Purchaser, except, in each case, for such non-compliance as would not
reasonably be expected to materially and adversely affect the ability of
Purchaser to perform its obligations under this Agreement.


 


SECTION 4.7                 Legal
Proceedings.  There are
no legal, governmental or regulatory investigations, actions, suits or
proceedings pending or, to the knowledge of Purchaser, threatened against
Purchaser which, individually or in the aggregate, if determined adversely to
Purchaser, would materially and adversely affect the ability of Purchaser to
perform its obligations under this Agreement.


 


SECTION 4.8                 No Broker’s
Fees.  Purchaser is not party to any
contract, agreement or understanding with any Person that would give rise to a
valid claim against the Company for an investment banking fee, commission,
finder’s fee or like payment in connection with the transactions contemplated
by this Agreement.


 


SECTION 4.9                 Sophistication.  Purchaser is, as of the date hereof and shall
be as of the Effective Date, an “accredited investor” within the meaning of Rule 501(a) under
the Securities Act.  Purchaser
understands and is able to bear any economic risks associated with such
investment (including, without limitation, the necessity of holding such Shares
and GGO Shares for an indefinite period of time).


 


SECTION 4.10               Purchaser
Intent.  Purchaser is acquiring the
Shares, the Warrants, the GGO Shares, the New Warrants and the GGO Warrants for
investment purposes only and not with a view to or for distributing or
reselling such Shares, Warrants, GGO Shares, New Warrants and GGO Warrants or
any part thereof, without prejudice, however, to Purchaser’s right, subject to
the provisions of this Agreement, at all times to sell or otherwise dispose of
all or any part of such Shares, Warrants, GGO Shares, New Warrants and GGO
Warrants pursuant to an effective registration statement under the Securities
Act or under an exemption from such registration and in compliance with
applicable federal and state securities Laws. 
Purchaser understands that Purchaser must bear the economic risk of its
investment indefinitely.


 


SECTION 4.11               Reliance on
Exemptions.  Purchaser
understands that the Shares and the GGO Shares are being offered and sold to
Purchaser in reliance upon specific exemptions from the registration
requirements of United States federal and state securities Laws.


 


25

















 


SECTION 4.12               REIT
Representations.  The
representations provided by Purchaser and, to the extent applicable, its
Affiliates, members or Affiliates of members, set forth on Exhibit D
are true, correct and complete as of the date hereof, and shall be true as of
the date of the issuance of the Warrants and as of the Closing Date, it being
understood that Purchaser’s Affiliates, members or Affiliates of members shall
be required to provide such representations only if such Person beneficially
owns Common Stock or New Common Stock in excess of the relevant ownership limit
set forth in the certificate of incorporation of the Company or any stock or
other equity interest owned by such Person in a tenant of the Company would be
treated as constructively owned by Purchaser.


 


SECTION 4.13               No Other
Representations or Warranties.  Except for the representations and warranties
made by Purchaser in this Article IV, neither Purchaser nor any
other Person on behalf of Purchaser makes any representation or warranty with
respect to Purchaser or its assets, liabilities, condition (financial or
otherwise) or prospects.


 


SECTION 4.14               Acknowledgement.  Purchaser acknowledges that (a) neither
the Company nor any Person on behalf of the Company is making any
representations or warranties whatsoever, express or implied, beyond those
expressly given by the Company in Article III of this Agreement and
(b) Purchaser has not been induced by, or relied upon, any
representations, warranties or statements (written or oral), whether express or
implied, made by any Person, that are not expressly set forth in Article III
of this Agreement.  Without limiting the
generality of the foregoing, except with respect to the representations and
warranties contained in Article III, Purchaser acknowledges that no
representations or warranties are made with respect to any projections,
forecasts, estimates, budgets, plans or prospect information that may have been
made available to Purchaser or any of its representatives.


 


ARTICLE V


 


COVENANTS OF THE COMPANY
AND PURCHASER


 


SECTION 5.1                 Bankruptcy
Court Motions and Orders.


 


(a)           No later than
the close of business on the date that is two (2) Business Days following
the date of this Agreement, the Company shall file with the Bankruptcy Court a
motion in form and substance satisfactory to Purchaser (the “Approval Motion”)
seeking to obtain entry of an order in the form attached hereto as Exhibit F
(the “Proposed Approval Order”), which order in the final form if
approved by the Bankruptcy Court (the “Approval Order”) shall approve,
among other things, the issuance of the Warrants to Purchaser and the
performance by the Company of its obligations under the Warrant Agreement.


 


(b)           The Approval
Motion, including any exhibits thereto and any notices or other materials in
connection therewith, and any modifications or amendments to the foregoing,
must be in form and substance reasonably satisfactory to Purchaser.


 


(c)           If the Approval
Order shall be appealed by any Person (or a petition for certiorari or motion
for reconsideration, amendment, clarification, modification, vacation, stay,
rehearing or reargument shall be filed with respect to such order), the Company
shall diligently defend 


 


26

















 


against any such appeal, petition or motion and
shall use its reasonable best efforts to obtain an expedited resolution of any
such appeal, petition or motion.  The
Company shall keep Purchaser reasonably informed and updated regarding the
status of any such appeal, petition or motion.


 


(d)           The Company
shall provide draft copies of all motions, notices, statements, schedules,
applications, reports and other papers the Company intends to file with the
Bankruptcy Court in connection with the Approval Order to Purchaser within a
reasonable period of time prior to the date the Company intends to file any of
the foregoing, and shall consult in advance in good faith with Purchaser
regarding the form and substance of any such proposed filing with the
Bankruptcy Court.


 


SECTION 5.2                 Warrants, New
Warrants and GGO Warrants. 
Within one Business Day of the date of the entry of the Approval Order,
the Company and the warrant agent shall execute and deliver the warrant agreement
in the form attached hereto as Exhibit G (with only such changes
thereto as may be reasonably requested by the warrant agent and reasonably
approved by Purchaser) (the “Warrant Agreement”) pursuant to which there
will be issued to Purchaser 60,000,000 warrants (the “Warrants”) each of
which, when issued, delivered and vested in accordance with the terms of the
Warrant Agreement, will entitle the holder to purchase one (1) share of
Common Stock at an initial price of $15.00 per share subject to adjustment as
provided in the Warrant Agreement.  The
Warrant Agreement shall provide that the Warrants shall vest in accordance with
Section 2.2(b) and Schedule A of the Warrant Agreement.  For the avoidance of doubt, Warrants that
have not vested may not be exercised. 
The Plan shall provide that upon the Effective Date, the Warrants,
regardless of whether or not vested, shall be cancelled for no
consideration.  The Plan shall also provide
that there shall be issued to Purchaser (i) 60,000,000 fully vested warrants
(the “New Warrants”) each of which entitles the holder to purchase one (1) share
of New Common Stock at an initial purchase price of $10.75 per share subject to
adjustment as provided in the underlying warrant agreement and (ii) 4,000,000
fully vested warrants (the “GGO Warrants”) each of which entitles the
holder to purchase one (1) share of GGO Common Stock  at a price of $50.00 per share subject to
adjustment as provided in the underlying warrant agreement, each in accordance
with the terms set forth in a warrant and registration rights agreement with
terms substantially similar to the terms set forth in the Warrant Agreement,
except that the expiration date for each New Warrant and GGO Warrant shall be
the seventh year anniversary of the date on which such warrants are
issued.  Purchaser, in its sole
discretion, may designate that some or all of the New Warrants or GGO Warrants
be issued in the name of, and delivered to, one or more Brookfield Consortium
Members in accordance with and subject to the Designation Conditions.


 


SECTION 5.3                 Assistance with
Capital Raising Activities.  Until the earliest to occur of (i) the
termination of this Agreement pursuant to its terms, (ii) the date that is
sixty (60) days following the Closing and (iii) the date the Company or
any Subsidiary of the Company makes a public announcement, enters into an
agreement or files any pleading or document with the Bankruptcy Court, in each
case, evidencing its decision to support any Competing Transaction, or the
Company or any Subsidiary of the Company enters into a Competing Transaction:


 


(a)           Purchaser shall
provide or shall use reasonable best efforts to cause an appropriate Affiliate
to provide, all cooperation and assistance as may be reasonably requested by
the Company in connection with the Company’s efforts to consummate equity and
debt financings 


 


27

















 


for the Company, and sales of properties and other
assets of the Company and its Subsidiaries for cash (collectively, the “Capital
Raising Activities”), including to:  (A) participate
in a reasonable number of customary meetings (including lender meetings, if
any), presentations, road shows, due diligence and drafting sessions and
sessions with rating agencies, investors or underwriters; (B) assist with
the preparation of materials for rating agency presentations, bank information
memoranda, prospectuses and similar documents necessary in connection with the
Capital Raising Activities; and (C) cooperate with the Company in connection
with applications to obtain such consents, approvals or authorizations which
may be reasonably necessary or desirable in connection with the Capital Raising
Activities; provided, that Purchaser shall not be required to provide
cooperation under this paragraph that:  (w) unreasonably
interferes with the business of Purchaser, its Affiliates, members or partners
or the Affiliates of its members or partners; (x) causes any closing
condition set forth in Article VII to fail to be satisfied or
otherwise causes a breach of this Agreement; (y) violates applicable Law;
or (z) requires Purchaser, its Affiliates, members or partners or the
Affiliates of its members or partners, to pay any fees or incur any liabilities
for which they are not reimbursed when such fees or liabilities are incurred or
adequately indemnified or require Purchaser to expend any financial resources
on behalf of the Company which they are not reimbursed or fully indemnified or
guarantee or otherwise support the extension of credit to the Company; and


 


(b)           the Company
shall consult in good faith with Purchaser regarding the appropriate balance
among Capital Raising Activities with a view toward employing the alternatives
that generate the most value for the Company with the lowest cost of capital
and to avoid unnecessary dilution, and the Company shall also consider in good
faith structuring certain asset sales as sales of minority positions in the
relevant assets, thereby enabling the Company to maintain majority ownership
and management of those assets.


 


SECTION 5.4                 Listing.  The Company shall use its reasonable best
efforts to cause the Shares and the New Warrants to be listed on the New York
Stock Exchange (the “NYSE”).  The Plan shall provide that the
Company shall use its reasonable best efforts to cause GGO to use its
reasonable best efforts to cause the GGO Shares and the GGO Warrants to be
listed on a U.S. national securities exchange.


 


SECTION 5.5                 Use of Proceeds.  The Plan shall provide that the Company and
its Subsidiaries, and GGO, shall apply the net proceeds from the sale of the
Shares and the GGO Shares and the Capital Raising Activities, as applicable, as
provided in the Plan Summary Term Sheet and the Plan.


 


SECTION 5.6                 Access to
Information.  Subject to
applicable Law and the existing confidentiality agreement between Brookfield
Asset Management Inc., an Affiliate of Purchaser, and the Company, dated February 27,
2010 (the “Confidentiality Agreement”), upon reasonable notice, the
Company shall afford Purchaser and its directors, officers, employees,
investment bankers, attorneys, accountants and other advisors or
representatives, reasonable access during normal business hours, throughout the
period prior to the Effective Date, to its employees, books, contracts and
records and, during such period, the Company shall (and shall cause its
Subsidiaries to) furnish promptly to Purchaser such information concerning its
business, properties and personnel as may reasonably be requested by Purchaser,
including, copies of all monthly financial information provided to its lenders
under its existing debtor-in possession 


 


28

















 


financing agreements; provided, that,
notwithstanding anything to the contrary, the Company shall not be required to
share confidential information relating to any Competing Transaction except as
contemplated by Section 5.7. 
Subject to the Confidentiality Agreement, the Company shall provide, and
shall cause its Subsidiaries, and shall use all reasonable efforts to cause their
respective representatives, including legal and accounting, to provide all
cooperation reasonably requested by Purchaser in connection with the assistance
contemplated to be provided by Purchaser in connection with the Capital Raising
Activities contemplated by Section 5.3.


 


SECTION 5.7                 Competing
Transactions.  From the
date of this Agreement until the earlier to occur of the Closing and the
termination of this Agreement, the Company shall provide written notice to
Purchaser not less than 48 hours prior to the Company or any Subsidiary of the
Company (i) entering into a definitive agreement providing for a Competing
Transaction or (ii) filing a motion with the Bankruptcy Court seeking to
obtain bid procedures or bid protections for or in connection with a Competing
Transaction.


 


SECTION 5.8                 Reservation for
Issuance.  The Company
shall reserve that number of shares of Common Stock sufficient for issuance
upon exercise or conversion of the Warrants. 
In connection with the issuance of the New Warrants, the Plan shall
provide that the Company shall reserve for issuance that number of shares of
New Common Stock sufficient for issuance upon exercise of the New
Warrants.  The Plan shall provide that
GGO shall reserve for issuance that number of shares of GGO Common Stock
sufficient for issuance upon exercise of the GGO Warrants.


 


SECTION 5.9                 Subscription
Rights.


 


(a)           Company
Subscription Right.


 


(i)            Sale
of New Equity Securities.  Following the Closing Date, Purchaser shall
have the right, or shall at any time and from time to time thereafter have the
right to appoint Brookfield Consortium Members in accordance with and subject
to the Designation Conditions, to exercise the Subscription Right set forth in
this Section 5.9 (Purchaser or one or more Brookfield Consortium
Members, each a “Subscribing Entity” and collectively the “Subscribing
Entities”).  If the Company or any
Subsidiary of the Company at any time or from time to time following the
Closing Date makes any public or non-public offering of any shares of New
Common Stock (or securities that are convertible into or exchangeable or
exercisable for, or linked to the performance of, New Common Stock) (other than
(1) pursuant to the granting or exercise of employee stock options or
other stock incentives pursuant to the Company’s stock incentive plans and
employment arrangements as in effect from time to time or the issuance of stock
pursuant to the Company’s employee stock purchase plan as in effect from time
to time, (2) pursuant to or in consideration for the acquisition of
another Person, business or assets by the Company or any of its Subsidiaries,
whether by purchase of stock, merger, consolidation, purchase of all or
substantially all of the assets of such Person or otherwise, (3) to
strategic partners or joint venturers in connection with a commercial
relationship with the Company or its Subsidiaries or to parties in connection
with such Persons providing the Company or its Subsidiaries with loans, credit
lines, cash price reductions or similar transactions, under arm’s-length
arrangements, (4) pursuant to the 


 


29

















 


Equity Exchange or any
conversion or exchange of debt or other claims into equity in connection with
the Plan, (5) the sale of Backstop Shares (as defined in the Pershing
Agreement) pursuant to the Pershing Agreement or (6) as set forth on Section 5.9(a) of
the Company Disclosure Letter) (the “Proposed Securities”), the
Subscribing Entities shall have the right to acquire from the Company (the “Subscription
Right”) for the same price (net of any underwriting discounts or sales
commissions or any other discounts or fees if not purchasing from or through an
underwriter, placement agent or broker) and on the same terms as such Proposed
Securities are proposed to be offered to others, up to the amount of such
Proposed Securities in the aggregate required to enable it to maintain its
proportionate New Common Stock-equivalent interest in the Company on a Fully
Diluted Basis determined in accordance with the following sentence, in each
case, subject to such limitations as may be imposed by applicable Law or stock
exchange rules.  The amount of such
Proposed Securities that the Subscribing Entities shall be entitled to purchase
in the aggregate in any offering pursuant to the above shall (subject to such
limitations as may be imposed by applicable Law or stock exchange rules) be
determined by multiplying (x) the total number of such offered shares of
Proposed Securities by (y) a fraction, the numerator of which is the
number of shares of New Common Stock held by Purchaser and Brookfield
Consortium Members on a Fully Diluted Basis as of the date of the Company’s
notice pursuant to Section 5.9(a)(ii) in respect of the  issuance
of such Proposed Securities, and the denominator of which is the number of
shares of New Common Stock then outstanding on a Fully Diluted Basis.  For the avoidance of doubt, the actual amount
of securities to be sold or offered to the Subscribing Entities pursuant to its
exercise of the Subscription Right hereunder shall be proportionally reduced if
the aggregate amount of Proposed Securities sold or offered is reduced.  Any offers and sales pursuant to this Section 5.9
in the context of a registered public offering shall be conditioned upon reasonably
acceptable representations and warranties of each Subscribing Entity regarding
its status as the type of offeree to whom a private sale can be made
concurrently with a registered public offering in compliance with applicable
securities Laws.


 


(ii)           Notice.  In the event the Company proposes to offer
Proposed Securities, it shall give Purchaser written notice of its intention,
describing the estimated price (or range of prices), anticipated amount of
securities, timing and other terms upon which the Company proposes to offer the
same (including, in the case of a registered public offering and to the extent
possible, a copy of the prospectus included in the registration statement filed
with respect to such offering), no later than ten Business Days after the
commencement of marketing with respect to such offering or after the Company
takes substantial steps to pursue any other offering.  The Subscribing Entity shall have three
Business Days from the date of receipt of such a notice to notify the Company in
writing that it intends to exercise its Subscription Right and as to the amount
of Proposed Securities the Subscribing Entity desires to purchase, up to the
maximum amount calculated pursuant to Section 5.9(a)(i).  In connection with an underwritten public
offering, such notice shall constitute a non-binding indication of interest to
purchase Proposed Securities at such a range of prices as the Subscribing
Entity may specify and, with respect to other offerings, such notice shall
constitute a binding commitment of the 
Subscribing Entity to purchase the amount of Proposed Securities so
specified at the price and other terms set forth in the Company’s notice to
such Subscribing Entity.  The failure 


 


30

















 


of the Subscribing Entity to
so respond within such three Business Day period shall be deemed to be a waiver
of the Subscription Right under this Section 5.9 only with respect
to the offering described in the applicable notice.  In connection with an underwritten public
offering or a private placement, the Subscribing Entity shall further enter
into an agreement (in form and substance customary for transactions of this
type) to purchase the Proposed Securities to be acquired contemporaneously with
the execution of any underwriting agreement or purchase agreement entered into
with the Company, the underwriters or initial purchasers of such underwritten
public offering or private placement, and the failure to enter into such an
agreement at or prior to such time shall constitute a waiver of the
Subscription Right in respect of such offering.


 


(iii)          Purchase
Mechanism.  If the
Subscribing Entity exercises its Subscription Right provided in this Section 5.9,
the closing of the purchase of the Proposed Securities with respect to which
such right has been exercised shall take place concurrently with the sale to
the other investors in the applicable offering, which period of time for the
closing of the purchase of the Proposed Securities with respect to which such
right has been exercised shall be extended for a maximum of 180 days in order
to comply with applicable Laws (including receipt of any applicable regulatory
or stockholder approvals).  Each of the
Company and the Subscribing Entity shall use its reasonable best efforts to
secure any regulatory or stockholder approvals or other consents, and to comply
with any Law necessary in connection with the offer, sale and purchase of, such
Proposed Securities.


 


(iv)          Failure
of Purchase.  In the
event (A) the Subscribing Entity fails to exercise its Subscription Right
provided in this Section 5.9 within said three Business Day period
or, (B) if so exercised, the Subscribing Entity fails or is unable to
consummate such purchase within the 180 day period specified in Section 5.9(a)(iii),
without prejudice to other remedies, the Company shall thereafter be entitled
during the Additional Sale Period to sell the Proposed Securities not elected
to be purchased pursuant to this Section 5.9 or which the
Subscribing Entity fails to, or is unable to, purchase, at a price and upon
terms no more favorable in any material respect to the purchasers of such
securities than were specified in the Company’s notice to Purchaser.  In the event the Company has not sold the
Proposed Securities within the Additional Sale Period, the Company shall not
thereafter offer, issue or sell such Proposed Securities without first offering
such securities to Purchaser in the manner provided above.


 


(v)           Non-Cash
Consideration.  In the case
of the offering of securities for a consideration in whole or in part other
than cash, including securities acquired in exchange therefor (other than
securities by their terms so exchangeable), the consideration other than cash
shall be deemed to be the fair value thereof as determined by the Company
Board; provided, however, that such fair value as determined by
the Company Board shall not exceed the aggregate market price of the securities
being offered as of the date the Company Board authorizes the offering of such
securities.


 


(vi)          Cooperation.  The Company and Purchaser shall cooperate in
good faith to facilitate the exercise of the Subscribing Entity’s Subscription
Right hereunder, including using reasonable efforts to secure any required
approvals or consents.


 


31
















 


(vii)                           General.  Notwithstanding anything herein to the
contrary, (A) if (1) the Subscribing Entity exercises its Subscription Right
pursuant to this Section 5.9 and is unable to complete the purchase of
the Proposed Securities concurrently with the sales to the other investors in
the applicable offering as contemplated by Section 5.9(a)(iii) due to
applicable regulatory or stockholder approvals and (2) the Company or the
Company Board determines in good faith that any delay in completion of an
offering in respect of which the Brookfield Consortium Members are entitled to
Subscription Rights would materially impair the financing objective of such
offering,  the Company may proceed with
such offering without the participation of Purchaser in such offering, in which
event the Company and Purchaser shall promptly thereafter agree on a process
otherwise consistent with this Section 5.9 as would allow Purchaser to
purchase, at the same price (net of any underwriting discounts or sales
commissions or any other discounts or fees if not purchasing from or through an
underwriter, placement agent or broker) as in such offering, up to the amount
of shares of New Common Stock (or securities that are convertible into or
exchangeable or exercisable for, or linked to the performance of, New Common
Stock) as shall be necessary to enable Purchaser to maintain its proportionate
New Common Stock-equivalent interest in the Company on a Fully Diluted Basis,
(B) if the Company or the Company Board determines in good faith that compliance
with the notice provisions in Section 5.9(a)(ii) would materially impair
the financing objective of  an offering
in respect of which the Brookfield Consortium Members are entitled to
Subscription Rights, the Company shall be permitted by notice to the
Subscribing Entity to reduce the notice period required under Section
5.9(a)(ii) (but not to less than one (1) Business Day) to the minimum
extent required to meet the financing objective of such offering, and the
Subscribing Entity shall have the right to either (x) exercise its Subscription
Rights during the shortened notice periods specified in such notice or (y)
require the Company to promptly thereafter agree on a process otherwise
consistent with this Section 5.9 as would allow Purchaser to purchase,
at the same price (net of any underwriting discounts or sales commissions or
any other discounts or fees if not purchasing from or through an underwriter,
placement agent or broker) as in such offering, up to the amount of shares of
New Common Stock (or securities that are convertible into or exchangeable or
exercisable for, or linked to the performance of, New Common Stock) as shall be
necessary to enable Purchaser to maintain its proportionate New Common
Stock-equivalent interest in the Company on a Fully Diluted Basis and (C) in
the event the Company is unable to issue shares of New Common Stock (or
securities that are convertible into or exchangeable or exercisable for, or
linked to the performance of, New Common Stock) to Purchaser as a result of a failure
to receive regulatory or stockholder approval therefor, the Company shall take
such action or cause to be taken such other action in order to place the
Subscribing Entity, in so far as reasonably practicable (subject to any
limitations that may be imposed by applicable Law or stock exchange rules), in
the same position in all material respects as if the Subscribing Entity was
able to effectively exercise its Subscription Rights hereunder, including, at
the option of the Subscribing Entity, issuing to the Subscribing Entity another
class of securities of the Company having terms to be agreed by the Company and
Purchaser having a value at least equal to the value per share of New Common
Stock, in each case, as shall be necessary to enable Purchaser to maintain its
proportionate New Common Stock-equivalent interest in the Company on a Fully
Diluted Basis.


 


32

















 


(viii)                        Termination.  This Section 5.9 shall terminate at
such time as Purchaser together with the Brookfield Consortium Members
collectively beneficially own less than 5% of the outstanding shares of New
Common Stock on a Fully Diluted Basis.


 


(b)                                 GGO Subscription Rights.  The Plan shall provide that in connection
with the consummation of the Plan, GGO shall enter into an agreement with
Purchaser with substantially similar terms to those set forth in Section
5.9(a) above with respect to any issuance of GGO Common Stock
(or securities that are convertible into or exchangeable or exercisable for, or
otherwise linked to, GGO Common Stock) after
the Effective Date.


 


SECTION 5.10                    Company Board of Directors.


 


(a)                                  Company Board of Directors.


 


(i)                                     The Plan shall
provide that as of the Effective Date, the Company Board shall have nine (9)
members and three (3) of such members shall be persons designated by Purchaser
(the “Purchaser Board Designees”), one to each class of directors of the
Company Board (if the Company has a staggered board of directors); provided,
that such designees shall be identified by name and in writing to the Company
no later than 10 Business Days prior to the voting deadline established by the
Bankruptcy Court.  Subject to the rights
provided under the Fairholme/Pershing Agreements, the remaining members of the
Company Board on the Effective Date shall be chosen by the Company in
consultation with Purchaser.


 


(ii)                                  Following the
Closing, the Company shall nominate as part of its slate of directors and use
its reasonable best efforts to have elected to the Company Board (including
through the solicitation of proxies for such person to the same extent as it
does for any of its other nominees to the Company Board) (subject to applicable
Law and stock exchange rules (provided that Purchaser Board Designees need not
be “independent” under the applicable rules of the applicable stock exchange or
the SEC)) (x) so long as Purchaser and the Brookfield Consortium Members
beneficially own (directly or indirectly) in the aggregate at least 20% of the
shares of New Common Stock on a Fully Diluted Basis, three (3) Purchaser Board
Designees, (y) so long as Purchaser and the Brookfield Consortium Members
beneficially own (directly or indirectly) in the aggregate at least 15%, but
less than 20%, of the shares of New Common Stock on a Fully Diluted Basis, two (2)
Purchaser Board Designees, and (z) so long as Purchaser and the Brookfield
Consortium Members beneficially own (directly or indirectly) in the aggregate
at least 10%, but less than 15%, of the shares of Common Stock on a Fully
Diluted Basis, one (1) Purchaser Board Designee.  For the avoidance of doubt, at and following
such time as Purchaser and the Brookfield Consortium Members beneficially own
(directly or indirectly) in the aggregate less than 10% of the shares of Common
Stock on a Fully Diluted Basis, Purchaser and the Brookfield Consortium Members
shall no longer have the right to designate directors for election to the
Company Board.  Following the Closing,
and subject to applicable Law and stock exchange rules, there shall be
proportional representation by Purchaser Board Designees on any committee of
the Company Board, except for special committees established for potential
conflict of interest situations involving any 
Brookfield Consortium Member or any Affiliate thereof, 


 


33

















 


and except that only Purchaser Board Designees who
qualify under the applicable rules of the applicable stock exchange or the SEC
may serve on committees where such qualification is required.  If at any time the number of Purchaser Board
Designees serving on the Company Board exceeds the number of Purchaser Board
Designees that Purchaser is then otherwise entitled to designate as a result of
a decrease in the percentage of shares of New Common Stock beneficially owned
by Purchaser and the Brookfield Consortium Members,  Purchaser shall, to the extent it is within
Purchaser’s control, use its commercially reasonable efforts to cause any such
additional Purchaser Board Designees to offer to resign such that the number of
Purchaser Board Designees serving on the Company Board after giving effect to
such resignation does not exceed the number of Purchaser Board Designees that
Purchaser is entitled to designate for election to the Company Board.


 


(iii)                               Except with
respect to the resignation of a Purchaser Board Designee pursuant to Section
5.10(a)(ii), Purchaser shall have the power to designate a Purchaser Board
Designee’s replacement upon the death, resignation, retirement,
disqualification or removal from office of such Purchaser Board Designee.  The Company Board shall promptly take all
action reasonably required to fill any vacancy resulting therefrom with such
replacement Purchaser Board Designee (including nominating such person, subject
to applicable Law, as the Company’s nominee to serve on the Company Board and
causing the Company to use all reasonable efforts to have such person elected
as a director of the Company and solicit proxies for such person to the same
extent as it does for any of the Company’s other nominees to the Company
Board).


 


(iv)                              The Purchaser
Board Designees shall be entitled to the same compensation and same
indemnification in connection with his or her role as a director as the members
of the Company Board, and each Purchaser Board Designee shall be entitled to
reimbursement for documented, reasonable out-of-pocket expenses incurred in
attending meetings of the Company Board or any committees thereof, to the same
extent as other members of the Company Board. 
The Company shall notify each Purchaser Board Designee of all regular
and special meetings of the Company Board and shall notify each Purchaser Board
Designee of all regular and special meetings of any committee of the Company
Board of which such Purchaser Board Designee is a member.  The Company shall provide each Purchaser
Board Designee with copies of all notices, minutes, consents and other
materials provided to all other members of the Company Board concurrently as
such materials are provided to the other members (except, for the avoidance of
doubt, as are provided to members of committees of which such Purchaser Board
Designee is not a member).


 


(v)                                 Purchaser Board
Designees candidates shall be subject to such reasonable eligibility criteria
as are applied in good faith by the nominating, corporate governance or similar
committee of the Company Board to other candidates for the Company Board.  Purchaser shall designate one of the
Purchaser Board Designees to serve as the initial chairman of the Company Board
as of the Effective Date.


 


34

















 


(b)                                 GGO
Board of Directors.


 


(i)                                                                                     The Plan shall provide that as of the Effective Date,
the board of directors of GGO (the “GGO Board”) shall have nine (9)
members and one (1) of such members shall be persons designated by Purchaser
(the “Purchaser GGO Board Designee”); provided, that such
designee shall be identified by name and in writing to the Company no later
than 10 Business Days prior to the voting deadline established by the
Bankruptcy Court.  Subject to the rights
provided under the Fairholme/Pershing Agreements, the remaining members of the
GGO Board on the Effective Date shall be chosen by the Company in consultation
with Purchaser.


 


(ii)                                  The Plan shall provide, in connection with the consummation of the Plan, for GGO to enter
into an agreement with Purchaser (the “GGO Agreement”) providing as
follows:


 


(1)                                  That
following the Closing, GGO shall nominate
one (1)  Purchaser GGO Board Designee as
part of its slate of directors and use its reasonable best efforts to have him
or her elected to the GGO Board (including through the solicitation of proxies
for such person to the same extent as it does for any of its other nominees to
the GGO Board) (subject to applicable Law and stock exchange rules (provided
that the Purchaser GGO Board Designee need not be “independent” under the
applicable rules of the applicable stock exchange or the SEC)) so long as Purchaser and the Brookfield Consortium
Members beneficially own (directly or
indirectly) in the aggregate at least 10% of the shares of GGO Common Stock on a Fully
Diluted Basis.  For the avoidance of
doubt, at and following such time as Purchaser and the Brookfield Consortium
Members beneficially own (directly or indirectly) in the aggregate less than
10% of the shares of GGO Common Stock on a Fully Diluted Basis, Purchaser and
the Brookfield Consortium Members shall no longer have the right to designate
any director for election to the GGO Board.


 


(2)                                  That following the Closing,
and subject to applicable Law and stock exchange rules, there shall be
proportional representation by the Purchaser GGO Board Designee on any
committee of the GGO Board, except for special committees established for
potential conflict of interest situations involving any  Brookfield Consortium Member or any Affiliate
thereof, and except that the Purchaser GGO Board Designee may serve on
committees where qualification under the applicable rules of the applicable
stock exchange or the SEC are required only if the Purchaser GGO Board Designee
so qualifies.  If at any time Purchaser
is no longer entitled to designate the Purchaser GGO Board Designee as a result
of a decrease in the percentage of shares of GGO Common Stock beneficially
owned by Purchaser and the Brookfield Consortium Members, Purchaser shall, to
the extent it is within Purchaser’s control, use commercially reasonable
efforts to cause any such Purchaser GGO Board Designee to offer to resign.


 


35

















 


(3)                                  That except with respect to
the resignation of the Purchaser GGO Board Designee pursuant to Section
5.10(b)(ii)(2), (A) Purchaser shall have the power to designate the
Purchaser GGO Board Designee’s replacement upon the death, resignation,
retirement, disqualification or removal from office of such Purchaser GGO Board
Designee and (B) the GGO Board shall promptly
take all action reasonably required to fill any vacancy resulting therefrom
with such replacement Purchaser GGO Board Designee (including nominating such
person, subject to applicable Law, as GGO’s nominee to serve on the GGO Board and causing GGO to use all reasonable efforts to
have such person elected as a director of GGO and solicit proxies for such
person to the same extent as it does for any of GGO’s other nominees to the GGO Board).


 


(4)                                  That (A) the Purchaser GGO
Board Designee shall be entitled to the same compensation and same
indemnification in connection with his or her role as a director as the members
of the GGO Board, and the
Purchaser GGO Board Designee shall be entitled to reimbursement for documented,
reasonable out-of-pocket expenses incurred in attending meetings of the GGO Board or any committees thereof, to the same extent as
other members of the GGO Board, (B)
GGO shall notify the Purchaser GGO Board Designee of all regular and
special meetings of the GGO Board and shall
notify the Purchaser GGO Board Designee of all regular and special meetings of
any committee of the GGO Board of which the
Purchaser GGO Board Designee is a member, and (C) GGO shall provide the
Purchaser GGO Board Designee with copies of all notices, minutes, consents and
other materials provided to all other members of the GGO Board concurrently as such materials are provided to the
other members (except, for the avoidance of doubt, as are provided to members
of committees of which the Purchaser GGO Board Designee is not a member).


 


(5)                                  Purchaser GGO Board Designee
candidates shall be subject to such reasonable eligibility criteria as applied
in good faith by the nominating, corporate governance or similar committee of
the GGO Board to other candidates for the GGO Board.


 


SECTION 5.11                    Notification of Certain
Matters.


 


(a)                                  The Company shall (i) give
prompt written notice to Purchaser of any written notice or other written
communication from any Person alleging that the consent of such Person which is
or may be required in connection with the transactions contemplated by this
Agreement is not likely to be obtained prior to Closing, if the failure to
obtain such consent would reasonably be expected to be adverse and material to
the Company and its Subsidiaries taken as a whole or would materially impair
the ability of the Company to consummate the transactions contemplated hereby
or perform its obligations hereunder, and (ii) facilitate adding such
individuals as designated by Purchaser to the electronic notification system
such that the designated individuals will receive electronic notice of the
entry of any Bankruptcy Court Order.


 


36

















 


(b)                                 To the extent permitted by
applicable Law, (i) the Company shall give prompt notice to Purchaser of the
commencement of any investigation, inquiry or review by any Governmental Entity
with respect to the Company or its Subsidiaries which would reasonably be
expected to be adverse and material to the Company and its Subsidiaries taken
as a whole or would materially impair the ability of the Company to consummate
the transactions contemplated hereby or perform its obligations hereunder, and
(ii) the Company shall give prompt notice to Purchaser, and Purchaser shall
give written prompt notice to the Company, of any event or circumstance that
would result in any representation or warranty of the Company or Purchaser, as
applicable, being untrue or any covenant or agreement of the Company or
Purchaser, as applicable, not being performed or complied with such that, in
each such case, the conditions set forth in Article VII or Article
VIII, as applicable, would not be satisfied if such event or circumstance
existed on the Closing Date.


 


(c)                                  No information received by a
party pursuant to this Section 5.11 nor any information received or
learned by a party or any of its representatives pursuant to an investigation
made under this Section 5.11 shall be deemed to (A) qualify,
modify, amend or otherwise affect any representations, warranties, conditions,
covenants or other agreements of the other party set forth in this Agreement,
(B) amend or otherwise supplement the information set forth in the Company
Disclosure Letter, (C) limit or restrict the remedies available to such
party  under this Agreement, applicable
Law or otherwise arising out of a breach of this Agreement, or (D) limit
or restrict the ability of such party to invoke or rely on, or effect the
satisfaction of, the conditions to the obligations of such party to consummate
the transactions contemplated by this Agreement set forth in Article VII
or Article VIII, as applicable.


 


SECTION 5.12                    Further Assurances.  From and after the Closing, the Company shall
(and shall cause each of its Subsidiaries to) execute and deliver, or cause to
be executed and delivered, such further instruments or documents or take such
other action and cause entities controlled by them to take such action as may
be reasonably necessary (or as reasonably requested by Purchaser) to carry out
the transactions contemplated by this Agreement.


 


SECTION 5.13                    [Intentionally Omitted.]


 


SECTION 5.14                    Rights Agreement;
Reorganized Company Organizational Documents.


 


(a)                                  Prior to the issuance of the
Warrants, the Rights Agreement shall be amended to provide that (i) the Rights
Agreement is inapplicable to (1) the acquisition by Purchaser of the Warrants
and the underlying securities thereof, (2) any antidilution adjustments to
those Warrants pursuant to the Warrant Agreement, (3) any shares of New Common
Stock that Purchaser or any Brookfield Consortium Member may be deemed to own
by no actions of its own and (4) up to an additional 2.5% of the issued and
outstanding shares of Common Stock by Brookfield Consortium Members, (ii) neither
Purchaser, nor any Brookfield Consortium Member, shall be deemed to be an
Acquiring Person (as defined in the Rights Agreement), (iii) neither a Shares
Acquisition Date (as defined in the Rights Agreement) nor a Distribution Date
(as defined in the Rights Agreement) shall be deemed to occur and (iv) the
Rights (as defined in the Rights Agreement) shall not separate from the Common
Stock, in each case under (ii), (iii) and (iv), as a result of the acquisition
by Purchaser of the Warrants, the underlying securities 


 


37

















 


thereof
and the acquisition of beneficial ownership of up to an additional 2.5% of the
issued and outstanding shares of Common Stock by Brookfield Consortium Members.


 


(b)                                 The certificate of
incorporation and bylaws of the Reorganized Company (the “Reorganized
Company Organizational Documents”) shall be in form mutually agreed to by
the Company and Purchaser, provided, that in the event that the Company and
Purchaser are not able to agree on such form prior to the Effective Date, the
Reorganized Company Organizational Documents shall be substantially in the same
form as the certificate of incorporation and bylaws of the Company as in
existence on the date of this Agreement (except that the number of authorized
shares of capital stock of the Reorganized Company shall be increased),
provided, however, that (i) the restriction on Beneficial Ownership (as such
term is defined in the certificate of incorporation of the Company) shall be
set at 9.9% of the outstanding capital stock of the Reorganized Company, (ii)
the restriction on Constructive Ownership (as such term is defined in the
certificate of incorporation of the Company) shall be set at 9.9% of the
outstanding capital stock of the Reorganized Company, (iii) there shall not be
an exemption from the restrictions set forth in the foregoing clauses (i) and
(ii) for the current Existing Holder (as such term is defined in the existing
certificate of incorporation of the Company), (iv) the Reorganized Company
shall provide a waiver from the restrictions set forth in the foregoing clauses
(i) and (ii) to any Brookfield Consortium Member if such Brookfield Consortium
Member provides the Reorganized Company with a certificate containing the
representations and covenants set forth on Exhibit D and (v) the
definition of “Person” shall be revised so that it does not include a “group”
as that term is used for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.


 


(c)                                  In the event the Reorganized
Company adopts a rights plan analogous to the Rights Agreement on or prior to
the Closing, the Plan shall provide that (i) the Reorganized Company’s Rights
Agreement shall be inapplicable to this Agreement and the transactions
contemplated hereby, (ii) neither Purchaser, nor any Brookfield Consortium
Member, shall be deemed to be an Acquiring Person (as defined in the Rights
Agreement) whether in connection with the acquisition of Shares, New Warrants,
shares issuable upon exercise of the New Warrants or otherwise, (iii) neither a
Shares Acquisition Date (as defined in the Rights Agreement) nor a Distribution
Date (as defined in the Rights Agreement) shall be deemed to occur and (iv) the
Rights (as defined in the Rights Agreement) will not separate from the New
Common Stock, in each case under (ii), (iii) and (iv), as a result of the
execution, delivery or performance of this Agreement, the consummation of the
transactions contemplated hereby including the acquisition of shares of New
Common Stock by Purchaser and any Brookfield Consortium Member after the date
hereof as otherwise permitted by this Agreement, the New Warrants or as
otherwise contemplated by the Non-Control Agreement.


 


(d)                                 In the event GGO adopts a
rights plan analogous to the Rights Agreement on or prior to the Closing, the
Plan shall provide that (i) GGO’s Rights Agreement shall be inapplicable to
this Agreement and the transactions contemplated hereby, (ii) neither
Purchaser, nor any Brookfield Consortium Member, shall be deemed to be an
Acquiring Person (as defined in the Rights Agreement) whether in connection
with the acquisition of shares of GGO Common Stock or GGO Warrants or the
shares issuable upon exercise of the GGO Warrants, (iii) neither a Shares
Acquisition Date (as defined in the Rights Agreement) nor a Distribution Date
(as defined in the Rights Agreement) shall be deemed to occur and (iv) the
Rights (as defined in the Rights 


 


38

















 


Agreement)
will not separate from the GGO Common Stock, in each case under (ii), (iii) and
(iv), as a result of the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby including the
acquisition of shares of GGO Common Stock by Purchaser and any Brookfield
Consortium Member after the date hereof as otherwise permitted by this
Agreement, or the GGO Warrants.


 


(e)                                  Newco (as defined in Exhibit
B) will be formed by the Operating Partnership solely for the purpose of
engaging in the transactions contemplated by this Agreement, including Exhibit B  and Capital Raising Activities permitted
pursuant to this Agreement.  Prior to the
Closing, Newco will not engage in any business activity, nor conduct its
operations, other than as contemplated by this Agreement (which, for greater
certainty, shall include Capital Raising Activities permitted pursuant to this
Agreement).


 


SECTION 5.15                    Stockholder Approval.  For so long as Purchaser has Subscription
Rights as contemplated by Section 5.9(a), in connection with the
expiration of the five (5) year period referenced in Section 3.2(c), the
Company shall put up for a stockholder vote at the immediately prior annual
meeting of its stockholders, and include in its proxy statement distributed to
such stockholders in connection with such annual meeting, approval of Purchaser’s
Subscription Rights for the maximum period permitted by the NYSE.  The Plan shall provide that GGO shall, for
the benefit of Purchaser, to the extent required by any U.S. national securities
exchange upon which shares of GGO Common Stock are listed, for so long as
Purchaser has subscription rights as contemplated by Section 5.9(b), put
up for a stockholder vote at the annual meeting of its stockholders, and
include in its proxy statement distributed to such stockholders in connection
with such annual meeting, approval of Purchaser’s subscription rights for the
maximum period permitted by the rules of such U.S. national securities
exchange.


 


SECTION 5.16                    Registration Statements.


 


(a)                                  Prior to or promptly
following the Effective Date, the Company shall file with the SEC a shelf
registration statement on Form S-1 or Form S-11, as applicable, covering the
resale by Purchaser of the Shares and the shares of New Common Stock issuable
upon exercise of the New Warrants, containing a plan of distribution reasonably
satisfactory to Purchaser, and the Company shall use its reasonable best
efforts to cause such registration statement to be declared effective by the
SEC no later than 180 days after the Effective Date.  Notwithstanding the foregoing, in the event
that the Company files a registration statement covering the resale of shares
of New Common Stock for any Other Sponsor prior to such date, the Company shall
include the Shares and shares of New Common Stock issuable upon exercise of the
New Warrants for resale by Purchaser in such registration statement.


 


(b)                                 The Plan shall provide that,
prior to or promptly following the Effective Date, GGO shall file with the SEC
a shelf registration statement on Form S-1 or Form S-11, as applicable,
covering the resale by Purchaser of the GGO Shares and the shares of GGO Common
Stock issuable upon exercise of the GGO Warrants, containing a plan of
distribution reasonably satisfactory to Purchaser, and GGO shall use its
reasonable best efforts to cause such registration statement to be declared
effective by the SEC no later than 180 days after the Effective Date.  Notwithstanding the foregoing, in the event
that GGO files a registration statement covering the resale of shares of GGO
Common Stock for any Other Sponsor prior to such date, GGO shall 


 


39

















 


include
the GGO Shares and shares of GGO Common Stock issuable upon exercise of the GGO
Warrants for resale by Purchaser in such registration statement.


 


SECTION 5.17                    Closing Date Net Debt.


 


(a)                                  The Company shall deliver to
Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”)
on or before the first Business Day that is five calendar days following approval
of the Disclosure Statement, that:  (i)
sets forth the Company’s good faith estimate for each of the three components
of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims
Amounts along with a reasonably detailed explanation and calculation of each
such component and (ii) discloses the Company’s good faith estimate of the
Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts
and GGO Setup Costs.


 


(b)                                 Purchaser shall review the
Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date
Net Debt Review Period, during which time the Company shall allow Purchaser
reasonable access to all non-privileged and non-work product documents or
records or personnel used in the preparation of the Preliminary Closing Date
Net Debt Schedule.  On or prior to the
Preliminary Closing Date Net Debt Review Deadline, Purchaser may deliver to the
Company a notice (the “Dispute Notice”) listing those items on the
Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception,
which Dispute Notice shall (i) specifically identify such items, and provide a
reasonably detailed explanation of the basis upon which Purchaser has delivered
such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement
Adjustment and Permitted Claims Amounts that Purchaser has calculated based on
the information contained in the Preliminary Closing Date Net Debt Schedule,
and (iii) specifically identify Purchaser’s proposed adjustment(s).  If Purchaser timely provides the Company with
a Dispute Notice, then Purchaser and the Company shall, within ten (10) days
following receipt of such Dispute Notice by the Company (the “Resolution
Period”), attempt to resolve their differences with respect to the items
specified in the Dispute Notice (the “Disputed Items”).  If Purchaser and the Company do not resolve
all Disputed Items by the end of the Resolution Period, then all Disputed Items
remaining in dispute shall be submitted to the Bankruptcy Court for resolution
at or concurrent with the Confirmation Hearing. 
The Bankruptcy Court shall consider only those Disputed Items that
Purchaser, on the one hand, and the Company, on the other hand, were unable to
resolve.  All other matters shall be
deemed to have been agreed upon by Purchaser and the Company.  If Purchaser does not timely deliver a  Dispute Notice, then Purchaser shall be
deemed to have accepted and agreed to the Preliminary Closing Date Net Debt
Schedule and to have waived any right to dispute the matters set forth therein.


 


(c)                                  The Company shall deliver to
Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than
15 calendar days prior to the Effective Date. 
Purchaser shall be afforded an opportunity to review the Conclusive Net
Debt Adjustment Statement and reasonable access to all non-privileged and
non-work product documents or records or personnel used in the preparation of
such statement.  On or prior to close of
business on the 7th calendar day following receipt of the Conclusive Net Debt
Adjustment Statement, Purchaser may deliver to the Company a notice (the “CNDAS
Dispute Notice”) listing those items to which Purchaser takes exception,
which CNDAS Dispute Notice shall (i) specifically identify such items, and
provide a reasonably detailed explanation of the basis upon which Purchaser has
delivered such 


 


40

















 


list,
(ii) set forth the alternative amounts that Purchaser has calculated based on
the information contained in the Conclusive Net Debt Adjustment Statement, and
(iii) specifically identify Purchaser’s proposed adjustment(s).  If Purchaser timely provides the Company with
a CNDAS Dispute Notice, then Purchaser and the Company shall attempt to resolve
the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”)
consensually.  If Purchaser and the
Company do not resolve all CNDAS Disputed Items prior to the Effective Date,
then for purposes of Closing and subject to subsequent adjustment consistent
with the Bankruptcy Court’s ruling, the highest number shall be used for
purposes of any calculations set forth on the Conclusive Net Debt Adjustment
Statement.  Within 10 days after Closing,
the Company shall file a motion for resolution by the Bankruptcy Court.  Purchaser and the Company agree to seek
expedited consideration of any such dispute. 
The dispute submitted to the Bankruptcy Court shall be limited to only
those CNDAS Disputed Items that Purchaser, on the one hand, and the Company, on
the other hand, were unable to resolve. 
All other matters shall be deemed to have been agreed upon by Purchaser
and the Company.  If Purchaser does not
timely deliver a  CNDAS Dispute Notice,
then Purchaser shall be deemed to have accepted and agreed to the Conclusive
Net Debt Adjustment Statement and to have waived any right to dispute the
matters set forth therein.  To the extent
that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court
for adjudication, Purchaser and the Company agree that this should not delay
the Effective Date or the Closing Date. 
Following adjudication of the dispute, appropriate adjustments shall be
made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note
and the other applicable documentation to put all parties in the same economic
position as if the corrected Conclusive Net Debt Adjustment Statement governed
at Closing.


 


(d)                                 It is the intention of the
parties that any Reserve should not alter the intended allocation of value
between GGO and the Company as Claims are resolved over time.  Accordingly, the Plan shall provide that, if
a GGO Promissory Note is required to be issued at Closing and there is a
Reserve Surplus Amount as of the end of any fiscal quarter prior to the
maturity of the GGO Promissory Note, then the principal amount of the GGO
Promissory Note shall be reduced, but not below zero, by (i) if and to the
extent that such Reserve Surplus Amount as of such date is less than or equal
to the Net Debt Surplus Amount, 80% of the Reserve Surplus Amount, and
otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided,
however, that because this calculation may be undertaken on a periodic basis,
for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount
shall be utilized to reduce the amount of the GGO Promissory Note if it has
been previously utilized for such purpose. 
In the event that any party requests an equitable adjustment to this
formula, the other parties shall consider the request in good faith.


 


(e)                                  The Plan shall provide that,
if there is an Offering Premium, the principal amount of the GGO Promissory
Note shall be reduced (but not below zero) by 80% of the aggregate Offering
Premium on the 30th day following the Effective Date and from time to time thereafter
upon receipt of Offering Premium until the last
to occur of (x) 45 days after the Effective Date, (y) the Settlement Date (as
defined in the Pershing Agreement), if applicable, and (z) the Bridge Note
Maturity Date (as defined in the Pershing Agreement), if applicable.


 


(f)                                    The Plan and the
agreements relating to the GGO Share Distribution shall provide that the
Company shall indemnify GGO and its Subsidiaries from and against losses,
claims,


 


41






 












 


damages,
liabilities and expenses attributable to MPC Taxes in
accordance with the terms and conditions of the Tax Matters Agreement.


 


(g)                                 Subject to the provisions of
the Tax Matters Agreement, if GGO is obligated to pay in cash, after
utilization of any available tax attributes, any MPC Taxes in the period
commencing on the Effective Date and ending 36 months after the Effective Date,
and the Company is not then obligated to indemnify GGO for its allocable share
of such MPC Taxes as a consequence of the Indemnity Cap (as defined in the Tax
Matters Agreement), then the Company shall loan to GGO the amount of such MPC
Taxes not payable by the Company as a consequence of the Indemnity Cap and the
principal amount of the GGO Promissory Note shall be increased by the amount of
such loan and if at such time no GGO Promissory Note is outstanding, on the
date of any such loan, GGO shall issue in favor of the Company a promissory
note in the aggregate principal amount of such loan on the same terms as the
GGO Promissory Note.


 


(h)                                 The Debtors dispute each of
the Contingent and Disputed Debt Claims and have sought or will seek
disallowance of such Claims in their entirety. 
To the extent such claims have not been ruled on by the Bankruptcy Court
or settled prior to the Effective Date, then the asserted amounts of such
claims will be included in calculation of the Closing Date Net Debt.  In the event that, on or after the Effective
Date, one or more of the Contingent and Disputed Debt Claims are either reduced
or disallowed by a ruling of the Bankruptcy Court or as a result of a
settlement, then the Closing Date Net Debt amount shall be adjusted to reflect
such ruling or settlement within ten (10) calendar days following any such
ruling or settlement (such adjusted Closing Date Net Debt to be referred to as
the “Adjusted CDND”) and the GGO Note Amount and Indemnity Cap (as
defined in the Tax Matters Agreement) shall be re-calculated as if the Adjusted
CDND was used in the calculations for the Effective Date.  To the extent that a GGO Promissory Note was
issued at Closing, then, in order to place GGO and the Company in the same
economic position as they would have been had the actual amount of such
settlement and/or allowance been used for purposes of calculating the GGO Note
Amount, the principal amount of such GGO Promissory Note will be reduced based
on the new calculation using the Adjusted CDND and, to the extent applicable,
any interest payments made by GGO to the Company on the GGO Promissory Note
prior to such re-calculation shall be refunded in respect of such reductions
and accrued but unpaid interest in respect of such reductions shall be
eliminated.  Similarly, in order to place
GGO and the Company in the same economic position as they would have been had
the actual amount of such settlement and/or allowance been used for purposes of
calculating the Indemnity Cap, the Indemnity Cap shall be re-calculated and
adjusted to reflect determination of the Net Debt Surplus Amount or Net Debt
Excess Amount using the Adjusted CDND. 
Additionally, to the extent any promissory note was issued by GGO in
favor of the Company pursuant to Section 5.17(g), then, in order to
place GGO and the Company in the same economic position as they would have been
had the actual amount of such settlement and/or allowance been used for
purposes of calculating such note, (i) the principal amount of such note
will be reduced based on the new calculation using the Adjusted CDND and (ii) to
the extent applicable, any interest payments made by GGO to the Company on such
note prior to such re-calculation shall be refunded in respect of such
reductions and accrued but unpaid interest in respect of such reductions shall
be eliminated.  Consistent with the foregoing, the Tax Matters Agreement
shall be retroactively applied using the re-calculated Indemnity Cap and any
resulting amounts payable thereunder shall be promptly paid.


 


42

















 


In the event that a Bankruptcy Court order allowing,
disallowing, or reducing and allowing any of the Contingent and Disputed Debt
Claims is appealed, vacated or otherwise modified, then following entry of a
final and nonappealable order by a court of competent jurisdiction determining
the amount (if any) of the applicable Contingent and Disputed Debt Claim, the
adjustment process set forth in the preceding paragraph shall be undertaken
within ten (10) calendar days following such order becoming final and
nonappealable.


 


(i)                                     Solely
for purposes of calculating whether a GGO Promissory Note is required to be
issued at Closing pursuant to this Agreement, $1,000,000 shall be added to GGO
Setup Costs.  If a GGO Promissory Note is
issued at Closing pursuant to this Agreement, then on the six-month anniversary
of the Closing Date (the “Calculation Date”), (A) the then
outstanding principal amount of the GGO Promissory Note shall be reduced (but
not to a number less than zero) by an amount equal to the excess (if it is a
positive number), if any, of $1,000,000 over the aggregate amount of cash costs
and expenses, if any, incurred by the Company after the Closing Date and prior
to the Calculation Date to transfer assets after Closing to GGO pursuant to Section 2.4(d) of
the Separation Agreement to be entered into between the Company and GGO at or
prior to Closing, and (B) if the principal amount of the GGO Promissory
Note is reduced pursuant to clause (A), any interest payments made
by GGO to the Company on the GGO Promissory Note prior to such reduction pursuant to clause (A) shall be refunded in respect
of such reductions and accrued but unpaid interest in respect of such reduction
shall be eliminated.


 


SECTION 5.18                    Determination
of Domestically Controlled REIT Status.


 


(a)                                  The Reorganized Company shall use reasonable efforts to comply with
treasury regulations, revenue procedures, notices or other guidance adopted
after the date hereof by the Internal Revenue Service or United States Treasury
governing the determination of its status as a “domestically controlled REIT”
as defined in Section 897 of the Code and the treasury regulations
promulgated thereunder (a “Domestically Controlled REIT”).


 


(b)                                 The Reorganized Company shall inquire of Purchaser and Purchaser shall
provide a written statement to the Reorganized Company setting forth the equity
ownership percentage that “United States persons” as defined in Section 7701(a)(30)
of the Code (“U.S. Persons”) hold in Purchaser.  Such statement shall be based on the direct
ownership in Purchaser, except to the extent that Purchaser has actual knowledge
of indirect ownership or can provide a reasonable estimate of such indirect
ownership.  For the avoidance of doubt,
if interests in Purchaser are held or registered in “street name”, such
Purchaser shall not be required to determine the ultimate beneficial owner of
such interests for the purposes of complying with this Section 5.18.


 


(c)                                  The Reorganized Company shall include in its shareholder demand letters a
request that each shareholder identify whether it is a U.S. Person.


 


(d)                                 The Reorganized Company shall at least annually request from Cede &
Co. a list of holders of the Reorganized Company’s stock registered with Cede &
Co. and, if granted access thereto, use reasonable efforts to review such list
to determine whether any such holders are U.S. Persons.


 


43

















 


(e)                                  The Reorganized Company shall, at least annually, as part of its internal
audit and Sarbanes-Oxley Act (“SOX”) procedures with respect to key
controls, use reasonable efforts to make a determination of whether or not it
believes that it qualifies as a Domestically Controlled REIT.  Such determination shall be based on
information reasonably available to the Reorganized Company under this Section 5.18
as well as through review of the information contained in any relevant Schedule
13D or Schedule 13G (or amendment thereto) filed with the SEC with respect to
the Reorganized Company.  A written
summary of the steps taken, information obtained and analysis of results will
be prepared.  Each such annual
determination (but not the written summary), subject to reasonable caveats and
assumptions, shall be set forth in the Reorganized Company’s next Annual Report
on Form 10-K filed with the SEC and shall be reported to the Board of
Directors at least annually (or within fifteen days of discovering a change in
status).  The Reorganized Company shall
use the Reorganized Company’s SOX policies and procedures to oversee such
determination.


 


(f)                                    The Company shall provide a copy of the written summary (and backup
documentation) prepared in accordance with clause (e) to  Purchaser upon the request of Purchaser.  In addition, if reasonably requested by
Purchaser, the Reorganized Company will, at Purchaser’s expense, make
reasonable efforts to provide additional information to and otherwise cooperate
with Purchaser, to enable Purchaser to respond to questions regarding
Domestically Controlled REIT status by a taxing authority or person engaging
in, or proposing to engage in, a transaction with Purchaser or an Affiliate
thereof.


 


ARTICLE VI


 


ADDITIONAL COVENANTS OF PURCHASER


 


SECTION 6.1                          Information.  From and after the date of this Agreement
until the earlier to occur of the Closing Date and the termination of this
Agreement, Purchaser agrees to provide the Debtors with such information as the
Debtors reasonably request regarding Purchaser for inclusion in the Disclosure
Statement as necessary for the Disclosure Statement to contain adequate
information for purposes of Section 1125 of the Bankruptcy Code.


 


SECTION 6.2                          Purchaser Efforts.  Purchaser shall use its reasonable best
efforts to obtain all material permits, consents, orders, approvals, waivers,
authorizations or other permissions or actions required for the consummation of
the transactions contemplated by this Agreement from, and shall have given all
necessary notices to, all Governmental Entities necessary to satisfy the
condition in Section 8.1(b) (provided, however,
that Purchaser shall not be required to pay or cause payment of any fees or
make any financial accommodations to obtain any such consent, approval, waiver
or other permission, except filing fees as required), and provide to such
Governmental Entities all such information as may be necessary or reasonably
requested relating to the transactions contemplated hereby.


 


SECTION 6.3                          Plan Support.  From and after the date of this Agreement
until the earliest to occur of (i) the Effective Date, (ii) the
termination of this Agreement and (iii) the date the Company or any
Subsidiary of the Company makes a public announcement, enters into an agreement
or files any pleading or document with the Bankruptcy Court, in each case,
evidencing its intention to support any Competing Transaction, or the Company
or any 


 


44

















 


Subsidiary
of the Company enters into a Competing Transaction, Purchaser agrees (unless
otherwise consented to by the Company) (provided, that (x) the
Company is not in material breach of this Agreement and (y) the terms of
the Plan are and remain consistent with the Plan Summary Term Sheet and this
Agreement, and are otherwise in form and substance satisfactory to Purchaser)
to (and shall use reasonable best efforts to cause its Affiliates to):


 


(a)                                  Not pursue, propose,
support, vote to accept or encourage the pursuit, proposal or support of, any
Chapter 11 plan, or other restructuring or reorganization for the Company, or
any Subsidiary of the Company, that is not consistent with the Plan;


 


(b)                                 Not, nor encourage any other
Person to, interfere with, delay, impede, appeal or take any other negative
action, directly or indirectly, in any respect regarding acceptance or
implementation of the Plan; and


 


(c)                                  Not commence any proceeding,
or prosecute any objection to oppose or object to the Plan or to the Disclosure
Statement and not to take any action that would delay approval or confirmation,
as applicable, of the Disclosure Statement and the Plan, in each case (i) except
as intended to ensure the consistency of the Disclosure Statement and the Plan
with the terms of this Agreement and the rights and obligations of the parties
thereto and (ii) without limiting any rights Purchaser may have to
terminate this Agreement pursuant to Section 11.1(b) (including
Section 11.1(b)(x)) hereof.


 


SECTION 6.4                          Transfer Restrictions.  Purchaser covenants and agrees that the
Shares and the GGO Shares (and shares issuable upon exercise of Warrants, New
Warrants and GGO Warrants) shall be disposed of only pursuant to an effective
registration statement under the Securities Act or pursuant to an available
exemption from the registration requirements of the Securities Act, and in
compliance with any applicable state securities Laws.  Purchaser agrees to the imprinting, so long
as is required by this Section 6.4, of the following legend on any
certificate evidencing the Shares or GGO Shares (and shares issuable upon
exercise of Warrants, New Warrants and GGO Warrants):


 


THE SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED (THE “ACT”) OR UNDER ANY STATE SECURITIES
LAWS (“BLUE SKY”) OR THE SECURITIES LAWS OF ANY OTHER RELEVANT
JURISDICTION.  THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE.  THE SHARES MAY NOT BE SOLD, ASSIGNED,
MORTGAGED, PLEDGED, ENCUMBERED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS EITHER (I) A REGISTRATION STATEMENT WITH RESPECT TO THE SHARES
IS EFFECTIVE UNDER THE ACT AND APPLICABLE BLUE SKY LAWS AND THE SECURITIES LAWS
OF ANY OTHER RELEVANT JURISDICTION ARE COMPLIED WITH OR (II) UNLESS WAIVED
BY THE ISSUER, THE ISSUER RECEIVES AN OPINION OF LEGAL COUNSEL SATISFACTORY TO
THE ISSUER THAT NO VIOLATION OF THE ACT OR OTHER APPLICABLE LAWS WILL BE
INVOLVED IN SUCH TRANSACTION.


 


Certificates evidencing the Shares (and shares
issuable upon exercise of Warrants and New Warrants) shall not be required to
contain such legend (A) while a registration statement 


 


45

















 


covering the resale of the Shares is effective under
the Securities Act, or (B) following any sale of any such Shares pursuant
to Rule 144 of the Exchange Act (“Rule 144”), or (C) following
receipt of a legal opinion of counsel to Purchaser that the remaining Shares
held by Purchaser are eligible for resale without volume limitations or other
limitations under Rule 144.  In
addition, the Company will agree to the removal of all legends with respect to
shares of New Common Stock deposited with DTC from time to time in anticipation
of sale in accordance with the volume limitations and other limitations under Rule 144,
subject to the Company’s approval of appropriate procedures, such approval not
to be unreasonably withheld, conditioned or delayed.


 


Following the time at which such legend is no longer
required (as provided above) for certain Shares, the Company shall promptly,
following the delivery by Purchaser to the Company of a legended certificate
representing such Shares, deliver or cause to be delivered to Purchaser a
certificate representing such Shares that is free from such legend.  In the event the above legend is removed from
any of the Shares, and thereafter the effectiveness of a registration statement
covering such Shares is suspended or the Company determines that a supplement
or amendment thereto is required by applicable securities Laws, then the
Company may require that the above legend be placed on any such Shares that
cannot then be sold pursuant to an effective registration statement or under Rule 144
and Purchaser shall cooperate in the replacement of such legend.  Such legend shall thereafter be removed when
such Shares may again be sold pursuant to an effective registration statement
or under Rule 144.


 


The Plan shall
provide, in connection with the consummation of the Plan, for
GGO to enter into an agreement with Purchaser with respect to GGO Shares and
GGO Warrants containing the same terms as provided above in this  Section 6.4 but replacing references to (A) “the
Company” with GGO, (B) “New Common Stock” with GGO Common Stock, (C) “Shares”
with “GGO Shares” and (D) “Warrants” or “New Warrants” with GGO Warrants.


 


Purchaser shall further covenant and agree in an
agreement to be entered into with GGO in connection with the Plan not to sell,
transfer or dispose of (each, a “Transfer”) (x) GGO Shares, GGO
Warrants, or shares issuable upon exercise of the GGO Warrants during the
period from and after the Closing Date to the six (6) month anniversary of
the Closing Date, (y) in excess of (A) 8.25% of the GGO Shares and (B) 8.25%
of the GGO Warrants or the shares issuable upon exercise of the GGO Warrants,
in the aggregate, during the period from and after the six (6) month
anniversary of the Closing Date to the one (1) year anniversary of the
Closing Date and (z) in excess of (A) 16.5% of the GGO Shares and (B) 16.5%
of the GGO Warrants or the shares issuable upon exercise of the GGO Warrants,
in the aggregate (and taken together with any Transfers effected under clause
(y)), during the period from and after the six (6) month anniversary of
the Closing Date to the eighteen (18) month anniversary of the Closing
Date.  For clarity, Purchaser shall not
be restricted from Transferring any GGO Shares, GGO Warrants, or shares
issuable upon exercise of the GGO Warrants from and after the eighteen (18)
month anniversary of the Closing Date.


 


Prior to the Closing, Purchaser shall not Transfer
the Warrants or the shares of Common Stock issuable upon exercise of the
Warrants prior to the earlier of (i) termination of this Agreement or (ii) the
date the Company or any Subsidiary of the Company (A) makes a public
announcement, enters into an agreement or files any pleading or document with
the Bankruptcy Court, in each case, evidencing its decision to support any
Competing Transaction, or the 


 


46

















 


Company or any Subsidiary of the Company enters into
a definitive agreement providing for a Competing Transaction or (B) provides
notice to Purchaser of its or any of its Subsidiaries decision to enter into,
or entry into, a definitive agreement providing for a Competing Transaction.


 


Notwithstanding anything herein to the contrary (but
subject to the Non-Control Agreement), Purchaser shall be permitted to Transfer
any portion or all of its Shares, GGO Shares, the Warrants, the New Warrants,
the GGO Warrants and the shares of Common Stock or New Common Stock issuable
upon exercise of the Warrants, the New Warrants and the GGO Warrants at any
time under the following circumstances (provided, that none of Purchaser’s
rights and benefits under this Agreement shall inure to the benefit of any
transferee under clause (ii) or (iii) below):


 


(i)                                     Transfers to
any Affiliate of Purchaser, any member of Purchaser, any Brookfield Consortium
Member and any member, partner or shareholder or any Affiliate of any
Brookfield Consortium Member, in accordance with and subject to the Designation
Conditions.


 


(ii)                                  Transfers
pursuant to a merger or tender offer or exchange offer involving the Company in
which any Person acquires more than 50% of the outstanding Common Stock on a
Fully Diluted Basis.


 


(iii)                               Any bona fide
mortgage, encumbrance, pledge or hypothecation of capital stock to a financial
institution in connection with any bona fide loan.


 


For the avoidance of doubt, Purchaser’s rights to
designate for nomination the Purchaser Board Designees and Purchaser GGO Board
Designees pursuant to Section 5.10 and Subscription Rights pursuant
to Section 5.9 may not be Transferred to a Person that is not a
Brookfield Consortium Member.


 


Purchaser agrees to the imprinting of a legend referencing
the above transfer restrictions on any certificate evidencing the Shares or GGO
Shares (and shares issuable upon exercise of Warrants, New Warrants and GGO
Warrants).  In connection with any
transfer of the Shares or GGO Shares (and shares issuable upon exercise of
Warrants, New Warrants and GGO Warrants), the Company shall remove such legends
from such certificates to the extent the transferee thereof is not bound by
such transfer restrictions.


 


SECTION 6.5                          Equity Commitments; Source
of Funds.


 


(a)                                  Without the prior written
consent of the Company, prior to the Release Date (as defined in the Escrow
Agreements), except as contemplated by Section 6.5(b) below,
Purchaser shall not (i) enter into any amendments or waive any provision
of or terminate the Brookfield Equity Commitment Letter or the Escrow
Agreements or any Acceptable LC or (ii) instruct the Escrow Agent to
distribute any of the Escrow Amount to an Equity Provider pursuant to Section 4(a)(ii) of
the Escrow Agreements.


 


(b)                                 In the event that at any
time following the execution of the Escrow Agreements, one or more Equity
Providers secures and delivers to Purchaser an Acceptable LC in replacement 


 


47

















 


for
its Commitment Amount (as defined in the applicable Escrow Agreement),
Purchaser shall be entitled to amend or terminate the applicable Escrow
Agreement replaced by an Acceptable LC without the consent of the Company.  Without the consent of the Company, Purchaser
shall not permit any amendments, waivers or terminations of any Acceptable LC.


 


(c)                                  Prior to the earlier to
occur of the Closing and the termination of this Agreement, Purchaser shall not
dividend, distribute or otherwise transfer or dispose of any cash or other
assets other than to pay the Purchase Price and the GGO Purchase Price and
pursuant to Article II.


 


SECTION 6.6                          REIT Representations and
Covenants.  At such
times as shall be reasonably requested by the Company, for so long as Purchaser
(or, to the extent applicable, its Affiliates, members or Affiliates of
members) beneficially or constructively owns in excess of the relevant
ownership limit set forth in the certificate of incorporation of the Company of
the outstanding Common Stock or New Common Stock, Purchaser shall (and, to the
extent applicable, cause its Affiliates, members or Affiliates of members to)
use reasonable best efforts to provide the Company with customary
representations and covenants, in the form attached hereto as Exhibit D
which shall, among other things, enable the Company to provide a waiver of the
ownership limit set forth in the certificate of incorporation of the Company to
Purchaser and ensure that the Company can appropriately monitor any “related
party rent” issues raised by the Warrants and the purchase of the Shares by
Purchaser, it being understood that Purchaser’s Affiliates, members or
Affiliates of members shall be required to provide such representations and
covenants only if such Person beneficially owns Common Stock or New Common
Stock in excess of the relevant ownership limit set forth in the certificate of
incorporation of the Company or any stock or other equity interest owned by
such Person in a tenant of the Company would be treated as constructively owned
by Purchaser.


 


SECTION 6.7                          Non-Control Agreement.  At or prior to the Closing, Purchaser shall
enter into the Non-Control Agreement with the Company.


 


SECTION 6.8                          Purchaser Formed Entities.  Purchaser Formed Entities were formed by
Purchaser solely for the purpose of engaging in the reorganization transactions
contemplated by Exhibit B hereto. 
None of the Purchaser Formed Entities has engaged in any other business
activities and has conducted and will conduct its operations prior to the
Closing only as contemplated by this Agreement, including Exhibit B.  Prior to the Closing, Purchaser shall cause
the Purchaser Formed Entities not to (i) incur any liabilities (other than
as contemplated by this Agreement) or (ii) take any action to cause any
condition to the Closing hereunder not to be satisfied.


 


SECTION 6.9                          Additional Backstops.


 


(a)                                  The Company may, at its
option, include in the Plan an offering (the “GGP Backstop Rights Offering”)
to its then-existing holders of Common Stock of rights to purchase New Common
Stock on the Effective Date in an amount sufficient to yield to the Company
aggregate net proceeds on the Effective Date of up to $500,000,000 or such
lesser amount as the Company may determine (the “GGP Backstop Rights
Offering Amount”).  In connection
with the GGP Backstop Rights Offering:


 


48

















 


(i)                                     Purchaser and
the Pershing Investors (together with the Purchaser, the “Backstop Investors”)
and the Company shall appoint a mutually-acceptable and
internationally-recognized investment bank to act as bookrunning dealer-manager
for the GGP Backstop Rights Offering (the “Dealer Manager”) pursuant to
such arrangements as they may mutually agree;


 


(ii)                                  the Dealer
Manager will, no later than the fifth business day in advance of the
commencement of the solicitation of votes on the Plan and offering of rights in
the GGP Backstop Rights Offering (which shall not be longer than 60 days),
recommend in writing to the Backstop Investors and the Company the number of
shares of New Common Stock that may be purchased for each share of Common
Stock, the subscription price of such purchase and the other terms for the
rights offering that the Dealer Manager determines are reasonably likely to
yield committed proceeds to the Company at the Effective Date equal to the GGP
Backstop Rights Offering Amount (it being understood that the Dealer Manager
will have no liability if it is later determined that its good faith
determination was erroneous);


 


(iii)                               the Backstop
Investors agree, severally but not jointly and severally, to subscribe, or
cause one or more designees to subscribe, for New Common Stock on a pro rata
basis to the extent rights are declined by holders of Common Stock, subject to
the subscription rights among the Backstop Investors set forth in clause (iv);


 


(iv)                              the Backstop
Investors will have subscription rights in any such offering allowing them to
maintain their respective proportionate pro forma New Common Stock -equivalent
interests on a Fully Diluted Basis with the effect that the Backstop Investors
will be assured of the ability to acquire such number of shares of New Common
Stock as would have been available to them pursuant to Section 5.9
had the GGP Backstop Rights Offering been made after the Closing;


 


(v)                                 the Backstop
Investors will receive aggregate compensation in the form of New Common Stock
(whether or not the backstop commitments are utilized) with a value equal to
three percent (3%) of the GGP Backstop Rights Offering Amount; and


 


(vi)                              the amount of
New Common Stock to be purchased pursuant to the GGP Backstop Rights Offering
will be subject to reduction to the extent that either (A) the Company
Board determines in its business judgment after consultation with the Backstop
Investors that it has sufficient liquidity and working capital available to it
in light of circumstances at the time and the costs and benefits to the Company
of consummation of the GGP Backstop Rights Offering or (B) the Backstop
Investors have agreed that they will provide to the Company, in lieu of the GGP
Backstop Rights Offering, the Bridge Securities contemplated in clause (b) below.


 


(b)                                 The Company shall give each
Backstop Investor written notice of its estimate of the amount the Backstop
Investors will be required to fund pursuant to Section 6.9(a) no
later than six (6) Business Days prior to the Closing Date.  If each Backstop Investor agrees, the
Backstop Investors shall have two (2) Business Days from the date of
receipt of such notice to notify the Company in writing that they intend to
elect to purchase from the Company in lieu of 


 


49

















 


all
or part of the proceeds to be provided by the GGP Backstop Rights Offering its
pro rata portion of senior subordinated unsecured notes and/or preferred stock
instruments (at the election of the Backstop Investors) on market terms except
as provided below (the “Bridge Securities”).  The Bridge Securities would have a final
maturity date, in the case of a note, and a mandatory redemption date, in the
case of preferred stock, on the 270th day after the Effective Date, would not
require any mandatory interim cash distributions except as contemplated in (i) below,
and would yield to the Company on the Closing Date cash proceeds (net of OID)
of at least the proceeds from the GGP Backstop Rights Offering that such Bridge
Securities are intended to replace.  The
Bridge Securities would be subordinated in right of payment to any New Debt,
would have market coupon and fees, would allow for any interest due prior to
maturity to be “paid in kind” (rather than paid in cash) at the election of the
Company, would be prepayable, without any prepayment penalty or prepayment
premium, on a pro rata basis at any time, and would otherwise be on market
terms (determined such that fair value of the Bridge Securities as of the
Effective Date is equal to par minus OID).


 


If the GGP Backstop Rights Offering is
completed or the Bridge Securities are issued:


 


(i)                                     unless the
Backstop Investors otherwise agree, the Bridge Securities shall be subject to
mandatory prepayment on a pro rata basis out of the proceeds of any equity or
debt securities offered or sold by the Company at any time the Bridge
Securities are outstanding (other than the New Common Stock sold to the
Backstop Investors, any New Common Stock sold in the GGP Backstop Rights
Offering and the New Debt); and


 


(ii)                                  if the Bridge
Securities are issued and not repaid on or before the date that is thirty (30)
days following the Effective Date, the Company shall conduct a rights offering
in an amount equal to the outstanding amount due with respect to the Bridge
Securities and with a pro rata backstop by each applicable Backstop Investor on
substantially the same procedure and terms provided in clause (a) above,
with such rights offering to have a subscription period of not more than 30
days that ends no later than the 10th day prior to the final maturity date or
mandatory redemption of the Bridge Securities.


 


(c)                                  If the Company requests
Purchaser and the Fairholme/Pershing Investors (collectively, the “Initial
Investors”), in writing, at any time prior to fifteen (15) days before the
commencement of solicitation of acceptances of the Plan, each Initial Investor
agrees that it shall, severally but not jointly and severally, provide or cause
a designee to provide its pro rata share of a backstop for new bonds, loans or
preferred stock (as determined by the Initial Investor) in an aggregate amount
equal to $1,500,000,000 less the Reinstated Amounts, at a market rate and
market commitment fees, and otherwise on terms and conditions to be mutually
agreed among the Initial Investors and the Company.  Any such notice shall be revocable by the
Company in its sole discretion.  The new
bonds, loans or preferred stock would require no mandatory interim cash
principal payments prior to the third anniversary of issuance (unless funded
from committed junior indebtedness or junior preferred stock), and would yield
proceeds to the Company on the Closing Date net of OID of at least
$1,500,000,000 less the Reinstated Amounts. 
Any Initial Investor may at any time designate in writing one or more
financial institutions with a corporate investment grade credit rating (from
S&P or Moody’s) to make a 


 


50

















 


substantially
similar undertaking as that provided herein and, upon the receipt of such an
undertaking by the Company in form and substance reasonably satisfactory to the
Company, such Initial Investor shall be released from its obligations under
this Agreement, the Fairholme Agreement or the Pershing Agreement, as
applicable.


 


(d)                                 For the purposes of Section 6.9(a) and
Section 6.9(b), the “pro rata share” or “pro rata basis” of each
Backstop Investor shall be determined in accordance with the maximum number of
shares of New Common Stock each Backstop Investor has committed to purchase at
Closing pursuant to the Pershing Agreement or this Agreement, as applicable, as
of the date hereof, in relation to the aggregate maximum number of shares of
New Common Stock all Backstop Investors have committed to purchase at Closing
pursuant to the Pershing Agreement or this Agreement, as applicable, as of the
date hereof.  For the purposes of Section 6.9(c),
the “pro rata share” or “pro rata basis” of each Initial Investor shall be
determined in accordance with the maximum number of shares of New Common Stock
each Initial Investor has committed to purchase at Closing pursuant to the
Fairholme/Pershing Agreements or this Agreement, as applicable, as of the date
hereof, but excluding any shares of New Common Stock the Backstop Investors
have committed to purchase pursuant to this Section 6.9.


 


(e)                                  Section 6.9(a) and Section 6.9(b) shall
terminate automatically without any action by any party upon entry of an order
of the Bankruptcy Court approving the termination fee and expense reimbursement
set forth in that certain Stock Purchase Agreement, dated as of July 8,
2010, by and between the Company and Teacher Retirement System of Texas, as to
which order the time to appeal or petition for writ of certiorari shall have
expired or if an appeal shall have been sought, such order shall have been
affirmed by the highest court to which such order was appealed without
modification of such order.


 


ARTICLE VII


 


CONDITIONS TO THE OBLIGATIONS OF
PURCHASER


 


SECTION 7.1                          Conditions to the
Obligations of Purchaser.  The
obligation of Purchaser to purchase the Shares and the GGO Shares pursuant to
this Agreement on the Closing Date are subject to the satisfaction (or waiver
(to the extent permitted by applicable Law) by Purchaser) of the following
conditions as of the Closing Date:


 


(a)                                  No Injunction.  No judgment, injunction, decree or other
legal restraint shall prohibit the consummation of the Plan or the transactions
contemplated by this Agreement.


 


(b)                                 Regulatory Approvals;
Consents.  All
permits, consents, orders, approvals, waivers, authorizations or other
permissions or actions of third parties and Governmental Entities required for
the consummation of the transactions contemplated by this Agreement and the
Plan shall have been made or received, as the case may be, and shall be in full
force and effect, except for those permits, consents, orders, approvals,
waivers, authorizations or other permissions or actions the failure of which to
make or receive would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect (it being agreed that any permit,
consent, order, approval, waiver, authorization or other permission or action
in respect of any Identified Asset for which any of the alternatives in Section 2.1(a) shall
have been employed


 


51






 












 


shall be deemed hereunder to have been made or
received, as the case may be, and in full force and effect).


 


(c)           Representations and Warranties and Covenants.  Except for changes permitted or contemplated
by this Agreement or the Plan Summary Term Sheet, each of (i) the
representations and warranties of the Company contained in Section 3.1,
Section 3.2, Section 3.3, Section 3.5, Section 3.20(a) (except
for such inaccuracies in Section 3.20(a) caused by sales,
purchases or transfers of assets which have been effected in accordance with,
subject to the limitations contained in, and not otherwise prohibited by, the
terms and conditions in this Agreement, including, without limitation, this Article VII)
and Section 3.23 shall be true and correct at and as of the Closing
Date as if made at and as of the Closing Date (except for representations and
warranties made as of a specific date, which shall be true and correct only as
of such specific date), (ii) the representations and warranties of the
Company contained in Section 3.4 shall be true and correct (except
for de minimis inaccuracies) at and as of
the Closing Date as if made at and as of the Closing Date (except for
representations and warranties made as of a specific date, which shall be true
and correct (except for de minimis
inaccuracies) only as of such specific date) and (iii) the other
representations and warranties of the Company contained in this Agreement,
disregarding all qualifications and exceptions contained therein relating to “materiality”
or “Material Adverse Effect”, shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date (except for
representations and warranties made as of a specified date, which shall be true
and correct only as of the specified date), except for such failures to be true
and correct that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect (it being agreed that the condition
in this subclause (iii) as it relates to undisclosed liabilities of the
Company and its Subsidiaries comprised of Indebtedness shall be deemed to be
satisfied if the condition in Section 7.1(p) is
satisfied.  In addition, for purposes of this Section 7.1(c) as it
relates to Section 3.20(b) of this Agreement, the reference to
“DIP Loan” in clause (i) of such Section 3.20(b) shall be
deemed to refer to that certain Senior Secured Debtor in Possession Credit,
Security and Guaranty Agreement, dated as of July 23, 2010, by and among
the Company, GGP Limited Partnership, the lenders party thereto, Barclays
Capital, as the Sole Arranger, Barclays Bank PLC, as the Administrative Agent
and Collateral Agent, and the guarantors party thereto (the “New DIP
Agreement”).  The Company shall have complied in all
material respects with all of its obligations under this Agreement, provided
that with respect to its obligations under Section 5.14(a), Section 5.14(b) (to
the extent applicable) and Section 5.14(c) hereof, the Company
shall have complied therewith in all respects. 
The Company shall have provided to Purchaser a certificate delivered by
an executive officer of the Company, acting in his or her official capacity on
behalf of the Company, to the effect that the conditions in this clause (c) and
the immediately following clause (d) have been satisfied as of the Closing
Date and Purchaser shall have received such other evidence of the conditions
set forth in this Section 7.1 as it shall reasonably request.


 


(d)           No Material Adverse Effect.  Since the date of this Agreement, there shall
not have occurred any event, fact or circumstance, that has had or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(e)           Plan and Confirmation Order.  The Plan, in form and substance satisfactory
to Purchaser, shall have been confirmed by the Bankruptcy Court by order in
form and substance satisfactory to Purchaser (the “Confirmation Order”),
which Confirmation Order shall be in full 


 


52

















 


force and effect (without waiver of the 14 day
period set forth in Bankruptcy Rule 3020(e)) as of the Effective Date and
shall not be subject to a stay of effectiveness.


 


(f)            Disclosure Statement.  The Disclosure Statement, in form and
substance acceptable to Purchaser, shall have been approved by order of the
Bankruptcy Court in form and substance satisfactory to Purchaser (the “Disclosure
Statement Order”).


 


(g)           Conditions to Confirmation.  The conditions to confirmation and the
conditions to the Effective Date of the Plan, including the consummation of the
transactions contemplated by Exhibit B, shall have been satisfied
or waived in accordance with the Plan and the Reorganized Company
Organizational Documents as set forth in the Plan shall be in effect.


 


(h)           GGO.  The GGO
Share Distribution and the issuance by GGO of the GGO Warrants shall have
occurred in accordance with this Agreement. 
In connection with the implementation of the GGO Share Distribution, (i) the
Company shall have provided Purchaser with reasonable access to all relevant
information and consulted and cooperated in good faith with Purchaser and the
GGO Representative with respect to the contribution of the Identified Assets to
GGO in accordance with Section 2.1(a), and (ii) all actions
taken by the Company and its Subsidiaries related thereto and all documentation
related to the formation and organization of GGO, the implementation of the GGO
Share Distribution, to separate the business of the Company and GGO and other
intercompany arrangements between the Company and GGO, in each case, shall be
reasonably satisfactory to Purchaser and shall be in full force and effect.


 


(i)            GGO Common Stock. 
GGO shall not have issued and outstanding on a Fully Diluted Basis
immediately following the Closing more than the GGO Common Share Amount of
shares of GGO Common Stock (plus (A) an aggregate 5,250,000 shares
issuable to the Purchaser and the Fairholme/Pershing Investors pursuant to this
Agreement and the Fairholme/Pershing Agreements, (B) such shares of GGO
Common Stock issuable upon exercise of the GGO Warrants pursuant to Section 5.2,
(C) such shares of GGO Common Stock issuable upon the exercise of warrants
that may be issued to the Fairholme/Pershing Investors pursuant to the
Fairholme/Pershing Agreements).


 


(j)            Valid Issuance. 
The Shares, Warrants, New Warrants and GGO Warrants and the GGO Shares
shall be validly issued to Purchaser (against payment therefor in the case of
the Shares and the GGO Shares).  The
Company and GGO shall have executed and delivered the warrant agreement for
each of the New Warrants and the GGO Warrants, together with such other
customary documentation as Purchaser may reasonably request in connection with
such issuance; each warrant agreement shall be in full force and effect and
neither the Company nor GGO shall be in breach of any representation, warranty,
covenant or agreement thereunder in any material respect.


 


(k)           No Legal Impediment to Issuance.  No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
prohibits the issuance or sale of, pursuant to this Agreement, the Shares, the
issuance of Warrants, New Warrants, GGO Shares, GGO Warrants, the issuance of
New Common Stock upon exercise of the New Warrants or the issuance of GGO
Common Stock upon exercise of the GGO Warrants; and no injunction or 


 


53

















 


order of any federal, state or foreign court shall have
been issued that prohibits the issuance or sale, pursuant to this Agreement, of
the Shares, the GGO Shares, the Warrants, New Warrants, GGO Warrants, the
issuance of New Common Stock upon exercise of the New Warrants or the issuance
of GGO Common Stock upon exercise of the GGO Warrants.


 


(l)            Registration Rights Agreements.  Each of the Company and GGO shall have
entered into a registration rights agreement with Purchaser with respect to all
registrable securities issued to or held by Purchaser or any Brookfield
Consortium Member from time to time in a manner that permits the registered
offering of securities pursuant to such methods of sale as Purchaser may
reasonably request from time to time. 
Each registration rights agreement shall provide for (i) an
unlimited number of shelf registration demands on Form S-3 to the extent
that the Company or GGO, as applicable, is then permitted to file a
registration statement on Form S-3, (ii) if the Company or GGO, as
applicable, is not eligible to use Form S-3, the filing by the Company or
GGO, as applicable, of a registration statement on Form S-1 or Form S-11,
as applicable, and the Company or GGO, as applicable, using its reasonable best
efforts to keep such registration statement continuously effective; (iii) piggyback
rights not less favorable than those provided in the Warrant Agreement; (iv) with
respect to the Company, underwritten offerings during the term of the
registration rights agreement, but not more than one (1) underwritten
offering in any 12-month period during the three (3) year period following
the Closing Date and not more than two (2) underwritten offerings in any
12-month period thereafter, provided that in no event shall the Company be
required to effect more than three (3) underwritten offerings in the
aggregate in any 12-month period at the request of Purchaser and the Other
Sponsors and, with respect to GGO, at least three underwritten offerings during
the term of the registration rights agreement, but not more than one in any
12-month period; (v) “black-out” periods not less favorable than those
provided in the Warrant Agreement; (vi) “lock-up” agreements by the
Company or GGO, as applicable, to the extent requested by the managing
underwriter in any underwritten public offering requested by Purchaser
consistent with those provided in the Warrant Agreement (it being understood
that the registration rights agreement will include procedures, reasonably
acceptable to Purchaser and the Company, designed to ensure that the total
number of days that the Company or GGO, as applicable, may be subject to a
lock-up shall not, in the aggregate after taking into account any applicable
lock-up periods resulting from registration rights agreements between the
Company or GGO, as applicable, and the Fairholme/Pershing Investors, exceed 120
days in any 365-day period); (vii) to the extent that Purchaser and any
Brookfield Consortium Member in the aggregate hold in excess of 20% of the New
Common Stock or GGO Common Stock, as applicable, on a fully diluted basis at
the time of an underwritten public offering by the Company or GGO, as
applicable, Purchaser and such Brookfield Consortium Member will agree to a
60-day customary lock up to the extent requested by the managing underwriter;
and (viii) other terms and conditions reasonably acceptable to
Purchaser.  The registration rights
agreement shall be in full force and effect and neither the Company nor GGO
shall be in breach of any representation, warranty, covenant or agreement
thereunder in any material respect.


 


(m)          Listing.  The
Shares shall be authorized for listing on the NYSE, subject to official notice
of issuance, and the shares of New Common Stock issuable upon exercise of the
New Warrants shall be eligible for listing on the NYSE.  The GGO Shares shall be authorized for
listing on a U.S. national securities exchange, subject to official notice of
issuance, and the 


 


54

















 


shares of GGO Common Stock issuable upon exercise of
the GGO Warrants shall be eligible for listing on a U.S. national securities
exchange.


 


(n)           Liquidity. 
The Company shall have, on the Effective Date and after giving effect to
the use of proceeds from Capital Raising Activities permitted under this
Agreement and the issuance of the Shares, and the payment and/or reserve for
all allowed and disputed claims under the Plan, transaction fees and other
amounts required to be paid in cash under the Plan as contemplated by the Plan
Summary Term Sheet, an aggregate amount of not less than $350,000,000 of
Proportionally Consolidated Unrestricted Cash (the “Liquidity Target”)
plus the net proceeds of the Additional Financings and the aggregate principal
amount of the Anticipated Debt Paydowns (or such higher number as may be agreed
to by Purchaser and the Company) plus the excess, if any, of (A) the
aggregate principal amount of New Debt and the Reinstated Amounts over (B) $1,500,000,000.  For the avoidance of doubt, the reserve shall
(i) include (a) the Contingent and Disputed Debt Claims, and (b) an
estimate of the cash component of a potential dividend to be issued by the
Company as a result of the spin-off of GGO, and (ii) exclude any amounts
to be paid in Shares.  In  addition, to the extent that there is any
availability under the Debt Cap, then such amount shall be included in
Proportionally Consolidated Unrestricted Cash as if the Company had such amount
in cash.


 


(o)           Board of Directors. 
Three persons designated by Purchaser pursuant to Section 5.10(a) shall
have been duly appointed to the Company Board and one person designated by
Purchaser pursuant to Section 5.10(b) shall have been duly
appointed to the GGO Board.


 


(p)           Debt of the Company.  Immediately following the Closing after
giving effect to the Plan, the aggregate outstanding Proportionally
Consolidated Debt shall not exceed $22,250,000,000  in the aggregate minus (i) the amount of
Proportionally Consolidated Debt attributable to assets sold, returned,
abandoned, conveyed, transferred or otherwise divested during the period
between the date of this Agreement through the Closing and minus (ii) the
excess, if any, of $1,500,000,000 over the aggregate principal amount of new
Unsecured Indebtedness incurred after the date of this Agreement and on or
prior to the Closing Date for cash (“New Debt”) and the aggregate
principal amount of any Debt under the Rouse Bonds or the Exchangeable Notes
that is reinstated or issued under the Plan (such amounts reinstated or issued,
the “Reinstated Amounts”) minus (iii) the amount of Proportionally
Consolidated Debt attributable to Identified Assets contributed to GGO pursuant
to Section 2.1(a), minus (iv) the amount of Proportionally
Consolidated Debt attributable to assets other than Identified Assets
contributed to GGO pursuant to Section 2.1(a) minus (v) the
principal and/or liquidation preference of the TRUPS and the UPREIT Units not
reinstated, plus (vi) in the event the Closing occurs prior to September 30,
2010, the amount of scheduled amortization on Proportionally Consolidated Debt
(other than Corporate Level Debt) from the Closing Date to September 30,
2010 that otherwise would have been paid by September 30, 2010, minus (vii) in
the event the Closing occurs on or after September 30, 2010, the amount of
actual amortization paid on Proportionally Consolidated Debt (other than
Corporate Level Debt) from September 30, 2010 to the Closing Date, plus (viii) (A) the
excess of the aggregate principal amount of new Debt incurred to refinance
existing Debt in accordance with Section 7.1(r)(vii) hereof
over the principal amount of the Debt so refinanced and (B) new Debt
incurred to finance unencumbered Company Properties and Non-Controlling
Properties after the date of this Agreement and on or prior to the Closing
(such amounts contemplated by clauses (A) and (B) collectively, the 


 


55

















 


“Additional Financing”) plus (ix) the
amount of other principal paydowns, writedowns and resulting impact on
amortization (or payments in the anticipated amortization schedule with respect
to Fashion Show Mall (Fashion Show Mall LLC), The Shoppes at the Palazzo and
Oakwood Shopping Center (Gretna, LA)) currently anticipated to be made by the
Company in connection with refinancings, or completion of negotiations in
respect of its property level Debt which the Company determines in good faith
are not actually required to be made prior to Closing (“Anticipated Debt
Paydowns”) plus (x) the excess, if any, of (A) the aggregate
principal amount of New Debt and the Reinstated Amounts over (B) $1,500,000,000
plus (xi) the aggregate amount of the Bridge Notes (as defined in the
Pershing Agreement) issued pursuant to Section 1.4 of the Pershing
Agreement (and the parties agree that such Bridge Notes shall not be included
in the calculation of Closing Date Net Debt or Closing Date Net Debt W/O
Reinstatement Adjustment) (the aggregate amount calculated pursuant to this Section 7.1(p),
the “Debt Cap”).


 


(q)           Outstanding Common Stock.  The number of issued and
outstanding shares of New Common Stock on a Fully Diluted Basis (including the
Shares) shall not exceed the Share Cap Number. 
The “Share Cap Number” means 1,104,683,256 plus the number of
shares (if any) issued to settle or otherwise satisfy Hughes Heirs Obligations,
plus up to 65,000,000 shares of New Common Stock issued in Liquidity Equity
Issuances, plus the shares of New Common Stock issuable upon the exercise of
the New Warrants, plus the shares of New Common Stock issuable upon the
exercise of those certain warrants issued to the Fairholme/Pershing Investors
pursuant to the Fairholme/Pershing Agreements, plus the number of shares of
Common Stock issued as a result of the exercise of employee stock options to
purchase Common Stock outstanding on the date hereof, plus 90,000 shares of
Common Stock issued to directors of the Company, plus the number of shares into
which any reinstated Exchangeable Notes can be converted, plus, in the event
shares of New Common Stock are issued pursuant to Section 6.9, the
difference between (i) the number of shares of New Common Stock issued to
existing holders of Common Stock and the Initial Investors, in each case,
pursuant to Section 6.9) minus (ii) 50,000,000 shares of New
Common Stock, minus the number of Put Shares (as defined in the Pershing
Agreement) under the Pershing Agreement (which shall not be considered Share
Equivalents for purposes of this calculation); provided, that if
Indebtedness under the Rouse Bonds or the Exchangeable Notes is reinstated
under the Plan, or the Company shall have incurred New Debt, or between the
date of this Agreement and the Closing Date the Company shall have sold for
cash real property assets outside of the ordinary course of business (“Asset
Sales”), the Share Cap Number shall be reduced by the quotient (rounded up
to the nearest whole number) obtained by dividing (x) the sum of (a) the
lesser of (I) $1,500,000,000 and (II) the sum of Reinstated Amounts
and the net cash proceeds to the Company from the issuance of New Debt, and (b) the
net cash proceeds to the Company from Asset Sales in excess of $150,000,000 by (y) the
Per Share Purchase Price.


 


(r)            Conduct of Business.  The following shall be true in all material
respects as of the Closing Date:


 


Except as otherwise expressly provided or permitted,
or contemplated, by this Agreement or the Plan Summary Term Sheet (including,
without limitation, in connection with implementing the matters contemplated by
Article II hereof) or any order of the Bankruptcy Court in effect
on the 


 


56

















 


date of the Agreement, during the period from the
date of this Agreement to the Closing, the following actions shall not have
been taken without the prior written consent of Purchaser (which consent
Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):


 


(i)                                     the Company shall not have (A) declared, set aside or paid any
dividends on, or made any other distributions in respect of, any of the Company’s
capital stock (other than dividends required to retain REIT status or to avoid
the imposition of entity level taxes), (B) split, combined or reclassified
any of its capital stock or issued or authorized the issuance of any other
securities in respect of, in lieu of or in substitution for its capital stock,
or (C) purchased, redeemed or otherwise acquired (other than as set forth
on Section 7.1(r)(i) of the Company Disclosure Letter or
pursuant to Company Benefit Plans) any shares of its capital stock or any
rights, warrants or options to acquire any such shares;


 


(ii)                                  the Company shall not have amended the Company’s certificate of
incorporation or bylaws other than to increase the authorized shares of capital
stock;


 


(iii)                               neither the Company nor any of its Subsidiaries shall have acquired or
agreed to acquire by merging or consolidating with, or by purchasing a
substantial portion of the stock, or other ownership interests in, or
substantial portion of assets of, or by any other manner, any business or any
corporation, partnership, association, joint venture, limited liability company
or other entity or division thereof except (A) in the ordinary course of
business, (B) for transactions with respect to joint ventures existing on
the date hereof valued at less than $10,000,000 or (C) for transactions
valued at less than $10,000,000 in the aggregate;


 


(iv)                              none of the Company Properties, Non-Controlling Properties or Identified
Assets shall have been sold or otherwise transferred, except, (A) in the
ordinary course of business, (B) to a wholly owned Subsidiary of the
Company (which Subsidiary shall be subject to the same restrictions under this
subsection (iv)), and (C) for sales or other transfers, the net proceeds
of which shall not exceed $1,000,000,000 in the aggregate, when taken together
with all such sales and other transfers of Company Properties, Non-Controlling
Properties and Identified Assets (the “Sales Cap”); provided that the
Sales Cap shall not apply with respect to sales or transfers of Identified
Assets to the extent the same shall have been consummated in accordance with
the express terms and conditions set forth in Article II hereof;


 


(v)                                 [Intentionally Omitted]


 


57

















 


(vi)                              none of the Company or any of its Subsidiaries shall have issued,
delivered, granted, sold or disposed of any Equity Securities (other than
(A) issuances of shares of Common Stock issued pursuant to, and in
accordance with, Section 7.1(u), but subject to Section 7.1(q),
(B) pursuant to the Equity Exchange, (C) the issuance of shares
pursuant to the exercise of employee stock options issued pursuant to the
Company Option Plans, (D) as set forth on Section 7.1(u) of
the Company Disclosure Letter), or (E) the issuance of shares to existing
holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9);


 


(vii)                           none of the Company Properties or Identified Assets shall have been
mortgaged, or pledged, nor shall the owner or lessee thereof have granted a
lien, mortgage, pledge, security interest, charge, claim or other Encumbrance
relating to debt obligations of any kind or nature on, or otherwise encumbered,
any Company Property or Identified Assets except in the ordinary course of
business consistent with past practice, other than encumbrances of Company
Properties or Identified Assets of Debtors in connection with (A) a
restructuring of existing indebtedness for borrowed money related to any such
Company Property or Identified Asset with the existing lender(s) thereof
or (B) a refinancing of existing indebtedness for borrowed money related to
any Company Property or Identified Asset in an amount not to exceed
$300,000,000 (the “Refinance Cap”), provided that (x) the Refinance
Cap shall not apply to a refinancing of the existing first lien indebtedness
secured by the Fashion Show Mall, (y) in the event that a refinancing is
secured by mortgages, deeds of trust, deeds to secure debt or indemnity deeds
of trust encumbering multiple Company Properties and Identified Assets, the
proceeds of such refinancing shall not exceed an amount equal to the Refinance
Cap multiplied by the number of Company Properties and Identified Assets so
encumbered, and (z) in connection with refinancing the indebtedness of a
Company Property or Identified Asset owned by a Joint Venture, the Refinance
Cap shall apply with respect to the aggregate share of such indebtedness which
is allocable to, or guaranteed by (but without duplication), the Company and/or
its Subsidiaries;


 


(viii)                        none of the Company or any of its Subsidiaries shall have undertaken any
capital expenditure that is out of the ordinary course of business consistent
with past practice and material to the Company and its Subsidiaries taken as a
whole, except as contemplated in the Company’s business plan for fiscal year
2010 adopted by the board of directors of the Company prior to the date hereof;
or


 


58

















 


(ix)                                the Company shall not have changed any of its methods, principles or
practices of financial accounting in effect, other than as required by GAAP or
regulatory guidelines (and except to implement purchase accounting and/or “fresh
start” accounting if the Company elects to do so).


 


(s)           REIT Opinion. 
Purchaser shall have received an opinion of Arnold & Porter
LLP, dated as of the Closing Date, substantially in the form attached hereto as
Exhibit J, that the Company (x) for all taxable years
commencing with the taxable year ended December 31, 2005 through December 31,
2009, has been subject to taxation as a REIT and (y) has
operated since January 1, 2010 to the Closing Date in a manner consistent
with the requirements for qualification and taxation as a REIT.


 


(t)            Non-Control Agreement.  The Company shall have entered into the
Non-Control Agreement with Purchaser. 
The Non-Control Agreement shall be in full force and effect and the
Company shall not be in breach of any representation, warranty, covenant or
agreement thereunder in any material respect.


 


(u)           Issuance or Sale of Common Stock.  Neither the Company nor any of its
Subsidiaries shall have issued or sold any shares of Common Stock (or
securities, warrants or options that are convertible into or exchangeable or
exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant
to the Equity Exchange, (B) the issuance of shares pursuant to the
exercise of employee stock options issued pursuant to the Company Option Plans,
(C) as set forth on Section 7.1(u) of the Company
Disclosure Letter or (D) the issuance of shares to existing holders of
Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9),
unless (1) the purchase price (or, in the case of securities that are
convertible into or exchangeable or exercisable for, or linked to the
performance of, Common Stock, the conversion, exchange or exercise price) shall
not be less than $10.00 per share (net of all underwriting and other discounts,
fees and any other compensation; provided, that for purposes hereof,
payments to the Fairholme Investors or the Pershing Investors in accordance
with Section 1.4 of the Fairholme Agreement or the Pershing Agreement,
respectively, shall not be considered a discount, fee or other compensation), (2) following
such issuance or sale, (x) no Person (other than (i) Purchaser,
Brookfield Consortium Members, the Fairholme/Pershing Investors and their
respective Affiliates and (ii) any institutional underwriter or initial
purchaser acting in an underwriter capacity in an underwritten offering) shall,
after giving effect to such issuance or sale, beneficially own more than 10% of
the Common Stock of the Company on a Fully Diluted Basis, and (y) no four
Persons (other than Purchaser, Brookfield Consortium Members, the
Fairholme/Pershing Investors and their respective Affiliates) shall, after
giving effect to such issuance or sale, beneficially own more than thirty
percent (30%) of the Common Stock on a Fully Diluted Basis; provided,
that this clause (2) shall not be applicable to any conversion or exchange
of claims against the Debtors into New Common Stock pursuant to the Plan; provided,
further, that subclause (y) of this clause (2) shall not be
applicable with respect to any Person listed on Exhibit N and (3) Purchaser
shall have been offered the right to purchase up to 15% of such shares of
Common Stock (or securities, warrants or options that are convertible into or
exchangeable or exercisable for Common Stock) on terms otherwise consistent
with Section 5.9 (except the provisions of such Section 5.9
with respect to issuances contemplated by this Section 7.1(u) shall
apply from the date of this Agreement) (provided that the right
described in this 


 


59

















 


clause (3) shall not be applicable to the
issuance of shares or warrants contemplated by the Fairholme/Pershing
Agreements, or any conversion or exchange of debt or other claims into equity
in connection with the Plan).


 


(v)           Hughes Heirs Obligations.  The Hughes Heirs Obligations shall have been
determined by order of the Bankruptcy Court entered on or prior to the
Effective Date (which order may be the Confirmation Order or another order
entered by the Bankruptcy Court) and satisfied in accordance with the terms of
the Plan.  For
the avoidance of doubt, to the extent that holders of Hughes Heirs Obligations
or other Claims against or interests in the Debtors arising under or related to
the Hughes Agreement receive any consideration in respect of such obligations,
Claims or interests under the Plan, there shall be no reduction in the number
of shares of New Common Stock or GGO Common Stock otherwise to have been
distributed on the Effective Date under the Plan in the Equity Exchange or the
GGO Share Distribution, as applicable.


 


(w)          GGO Promissory Note. 
The GGO Promissory Note, if any, shall have been issued by GGO (or one
of its Subsidiaries, provided that the GGO Promissory Note is guaranteed by
GGO) in favor of the Operating Partnership.


 


ARTICLE VIII


 


CONDITIONS TO THE
OBLIGATIONS OF THE COMPANY


 


SECTION 8.1                 Conditions to the
Obligations of the Company.  The
obligation of the Company to issue the Shares and the obligation of GGO to
issue the GGO Shares pursuant to this Agreement on the Closing Date are subject
to the satisfaction (or waiver by the Company) of the following conditions as
of the Closing Date:


 


(a)           No Injunction. 
No judgment, injunction, decree or other legal restraint shall prohibit
the consummation of the Plan or the transactions contemplated by this
Agreement.


 


(b)           Regulatory Approvals; Consents.  All permits, consents, orders, approvals,
waivers, authorizations or other permissions or actions of third parties and
Governmental Entities required for the consummation of the transactions
contemplated by this Agreement and the Plan shall have been made or received,
as the case may be, and shall be in full force and effect, except for those
permits, consents, orders, approvals, waivers, authorizations or other
permissions or actions the failure of which to make or receive would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(c)           Representations and Warranties and Covenants.  Each of (i) the representations and
warranties of Purchaser contained in Section 4.1, Section 4.2,
Section 4.3, and Section 4.12 in this Agreement shall
be true and correct at and as of the Closing Date as if made at and as of the
Closing Date (except for representations and warranties made as of a specific
date, which shall be true and correct only as of such specific date), and (ii) the
other representations and warranties of Purchaser contained in this Agreement,
disregarding all qualifications and exceptions contained therein relating to “materiality”,
shall be true and correct at and as of the date of this Agreement and at and as
of the Closing Date as if made at and as of the Closing Date 


 


60

















 


(except for representations and warranties made as
of a specified date, which shall be true and correct only as of the specified
date), except for such failures to be true and correct that, individually or in
the aggregate, would not reasonably be expected to have a material adverse
effect on the ability of Purchaser to consummate the transactions contemplated
by this Agreement.  Purchaser shall have
complied in all material respects with all of its obligations under this
Agreement.  Purchaser shall have provided
to the Company a certificate delivered by an executive officer of the managing
member of Purchaser, acting in his or her official capacity on behalf of
Purchaser, to the effect that the conditions in this clause (c) have been
satisfied as of the Closing Date.


 


(d)           Plan and Confirmation Order.  The Plan shall have been confirmed by the
Bankruptcy Court by order, which order shall be in full force and effect and
not subject to a stay of effectiveness.


 


(e)           Conditions to Confirmation.  The conditions to confirmation and the
conditions to the Effective Date of the Plan shall have been satisfied or
waived in accordance with the Plan.


 


(f)            GGO.  The
GGO Share Distribution shall have occurred.


 


(g)           No Legal Impediment to Issuance.  No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
prohibits the issuance or sale of, pursuant to this Agreement, the Shares, the
issuance of Warrants, New Warrants, GGO Shares, GGO Warrants, the issuance of
New Common Stock upon exercise of the New Warrants or the issuance of GGO
Common Stock upon exercise of the GGO Warrants; and no injunction or order of
any federal, state or foreign court shall have been issued that prohibits the
issuance or sale, pursuant to this Agreement, of the Shares, the GGO Shares,
the Warrants, the New Warrants, GGO Warrants, the issuance of New Common Stock
upon exercise of the New Warrants or the issuance of GGO Common Stock upon
exercise of the GGO Warrants.


 


(h)           Reorganization Opinion.  The Company shall have received an opinion of
Weil, Gotshal & Manges LLP, dated as of the Closing Date, in form and
substance reasonably satisfactory to the Company, substantially to the effect
that, on the basis of the facts, representations and assumptions set forth in
such opinion, the exchange of Common Stock for New Common Stock in the Equity
Exchange should be treated as a reorganization within the meaning of Section 368(a) of
the Code.  In rendering such opinion,
Weil, Gotshal & Manges LLP may require and rely upon representations
and covenants made by the parties to this Agreement.


 


(i)            IRS Ruling. 
The Company shall have obtained a favorable written ruling from the
United States Internal Revenue Service confirming the qualification of the GGO
Share Distribution and the prerequisite internal spin-offs each as a “tax free
spin-off” under the Code.


 


(j)            Funding. 
Purchaser shall have paid to the Company and GGO, as applicable, all
amounts payable by Purchaser under Article I and Article II
of this Agreement, by wire transfer of immediately available funds to such
account or accounts as shall have been designated in writing by the Company at
least three (3) Business Days prior to the Closing Date.


 


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(k)           REIT Matters. 
The representations and covenants set forth on Exhibit D in
respect of Purchaser and, to the extent applicable, its Affiliates, members,
Affiliates of members or designees, shall be true and correct in all material
respects as of the Closing Date as if made at and as of the Closing Date, it
being understood that Purchaser’s Affiliates, members or Affiliates of members
shall be required to provide such representations and covenants only if such
Person beneficially owns Common Stock or New Common Stock in excess of the
relevant ownership limit set forth in the certificate of incorporation of the
Company or any stock or other equity interest owned by such Person in a tenant
of the Company would be treated as constructively owned by Purchaser.


 


(l)            Non-Control Agreement.  Purchaser shall have entered into the
Non-Control Agreement with the Company. 
The Non-Control Agreement shall be in full force and effect and
Purchaser shall not be in breach of any representation, warranty, covenant or
agreement thereunder in any material respect.


 


(m)          GGO Promissory Note. 
The GGO Promissory Note, if any, shall have been issued by GGO (or one
of its Subsidiaries, provided that the GGO Promissory Note is guaranteed by
GGO) in favor of the Operating Partnership.


 


ARTICLE IX


 


INDEMNIFICATION


 


SECTION 9.1                 Indemnification.


 


(a)           Subject to Section 9.1(b),
the Company shall indemnify and hold harmless Purchaser, its members and
partners and their respective Affiliates, officers, directors, employees,
agents, advisors and controlling persons (each an “Indemnified Person”),
from and against any and all losses, claims, damages, liabilities and
reasonable expenses to which any such Indemnified Person may become subject, in
each case, to the extent arising solely and directly out of any claim,
challenge, litigation, investigation or proceeding initiated by a third party
with respect to cooperation and assistance provided by Purchaser to the Company
pursuant to Section 5.3(a) of this Agreement (but, for the
avoidance of doubt, not other transactions relating to the Plan), and to
reimburse such Indemnified Persons for any reasonable legal or other
out-of-pocket expenses as they incur in connection with investigating,
responding to or defending any of the foregoing.  Notwithstanding the foregoing or anything to
the contrary, the Company will not be responsible to indemnify or
reimburse any Indemnified Person for anything resulting from willful misconduct
or gross negligence of any Indemnified Person.


 


(b)           Promptly after
receipt by an Indemnified Person of notice of the commencement of any claim,
litigation, investigation or proceeding for which indemnification is provided
pursuant to this Agreement (“Proceedings”), Purchaser shall, if a claim
is to be made hereunder against the Company in respect thereof, notify the
Company in writing of the commencement thereof; provided that the omission so
to notify the Company shall not relieve it from any liability that it may have
hereunder except to the extent it has been materially prejudiced by such
failure.  In case any such Proceedings
are brought against any Indemnified Person, the Company shall be entitled to
participate therein, and, to the extent that it may elect by written notice 


 


62

















 


delivered to
Purchaser, to assume the defense thereof, with counsel reasonably satisfactory
to Purchaser, provided that if the defendants in any such Proceedings include
both such Indemnified Person and the Company and such Indemnified Person shall
have reasonably concluded based on the advice of outside counsel that there are
legal defenses available to it that are different from or additional to those
available to the Company such that representation by counsel for the Company
would involve a material conflict of interest, such Indemnified Persons shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such Proceedings on behalf of such
Indemnified Person.  The Company shall
not be liable to any Indemnified Person for legal expenses incurred by such
Indemnified Person in connection with the defense of any Proceeding unless (i) such
Indemnified Person shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the Company shall not be liable
under either this (i) or the following clause (ii) for the expenses
of more than one separate counsel representing the Indemnified Persons who are
parties to such Proceedings) or (ii) the Company shall not have employed
counsel reasonably satisfactory to Purchaser to represent such Indemnified
Person within a reasonable time after notice of commencement of the
Proceedings.


 


(c)           The Company
shall not be liable for any settlement of any Proceedings effected without its
written consent (which consent shall not be unreasonably withheld).  If any settlement of any Proceeding is
consummated with the written consent of the Company or if there is a final
judgment for the plaintiff in any such Proceedings, the Company agrees to
indemnify and hold harmless each Indemnified Person from and against any and
all losses, claims, damages, liabilities and expenses by reason of such
settlement or judgment in accordance with, and subject to the limitations of,
the provisions of this Article IX. 
The Company shall not, without the prior written consent of an
Indemnified Person (which consent shall not be unreasonably withheld), effect
any settlement of any pending or threatened Proceedings in respect of which
indemnity is provided hereunder by such Indemnified Person unless such
settlement (i) includes an unconditional release of such Indemnified
Person from all liability on the claims that are (1) the subject matter of
such Proceedings and (2) subject to indemnification under this Article IX
and (ii) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.


 


ARTICLE X


 


SURVIVAL OF
REPRESENTATIONS AND WARRANTIES


 


SECTION 10.1               Survival of Representations
and Warranties.  The representations
and warranties made in this Agreement shall survive the execution and delivery
of this Agreement but shall terminate and be of no further force and effect
following the earlier of (i) the termination of this Agreement in
accordance with Article XI and (ii) the Closing.


 


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ARTICLE XI


 


TERMINATION


 


SECTION 11.1               Termination.  This Agreement and the obligations of the
parties hereunder shall terminate automatically without any action by any party
if (i) the Company has not filed the Approval Motion within two Business
Days following the date of this Agreement, (ii) the Approval Order, in
form and substance satisfactory to Purchaser, approving, among other things,
the issuance of the Warrants, is not entered by the Bankruptcy Court on or
prior to the date that is 43 days after the date of this Agreement or (iii) if
the Debtors withdraw the Approval Motion, in each of cases (i), (ii) and (iii) unless
Purchaser and the Company otherwise agree in writing.  In addition, this Agreement may be terminated
and the transactions contemplated hereby may be abandoned at any time prior to
the Closing Date:


 


(a)           by mutual written consent of Purchaser and the Company;


 


(b)           by Purchaser by written notice to the Company upon the
occurrence of any of the following events (which notice shall specify the event
upon which such termination is based):


 


(i)            if the Effective Date and the purchase and sale
contemplated by Article I have not occurred by the Termination
Date; provided, however, that the right to terminate this
Agreement under this Section 11.1(b)(i) shall not be available
to Purchaser if it has breached in any material respect its obligations under
this Agreement in any manner that shall have proximately caused the Closing
Date not to occur on or before the Termination Date;


 


(ii)           if any Bankruptcy Cases of the Company or any Debtor which
is a Significant Subsidiary shall have been dismissed or converted to cases
under chapter 7 of the Bankruptcy Code or if an interim or permanent trustee or
an examiner shall be appointed to oversee or operate any of the Debtors in
their Bankruptcy Cases, in each case, except (x) as would not reasonably
be expected to have a Material Adverse Effect or (y) with respect to the
Bankruptcy Cases for Phase II Mall Subsidiary, LLC, Oakwood Shopping Center
Limited Partnership and Rouse Oakwood Shopping Center, LLC;


 


(iii)          if, from and after the issuance of the Warrants, the
Approval Order shall without the prior written consent of each Purchaser, cease
to be in full force and effect resulting in the cancellation of any Warrants or
a modification of any Warrants, in each case, other than pursuant to their
terms, that adversely affects any Purchaser;


 


(iv)          if, without Purchaser’s consent, the Warrants have not been
issued to Purchaser in accordance with Section 5.2, or if after the
Warrants are issued, any shares of Common Stock underlying the Warrants cease
at any time to be authorized for issuance on a U.S. national securities
exchange;


 


(v)           if there has been a breach by the Company of any
representation, warranty, covenant or agreement of the Company contained in
this Agreement or the Company shall have taken any action which, in each case, (A) would
result in a failure of a condition set forth in Article VII and (B) cannot
be cured prior to the Termination Date, 


 


64

















 


after written notice to the
Company of such breach and the intention to terminate this Agreement pursuant
to this Section; provided, however, that the right to terminate
this Agreement under this Section shall not be available to Purchaser if
it has breached in any material respect its obligations under this Agreement;


 


(vi)          if the Company consummates a Competing Transaction;


 


(vii)         if the Company or any Subsidiary of the Company issues any
shares of Common Stock or New Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock or New Common Stock) at a purchase
price (or in the case of securities that are convertible into or exchangeable
or exercisable for, or linked to the performance of, Common Stock or New Common
Stock, the conversion, exchange, exercise or comparable price) of less than
$10.00 per share (net of all underwriting and other discounts, fees and any
other compensation and related expenses; provided, that for purposes
hereof, payments to the Fairholme Investors or the Pershing Investors in
accordance with Section 1.4 of the Fairholme Agreement or the Pershing
Agreement, respectively, shall not be considered a discount, fee or other
compensation) of Common Stock or New Common Stock or converts any claim against
any of the Debtors into New Common Stock at a conversion price less than $10.00
per share of Common Stock or New Common Stock (in each case, other than
pursuant to (A) the exercise, exchange or conversion of Share Equivalents
of the Company existing on the date of this Agreement in accordance with the
terms thereof as of the date of this Agreement, (B) the Equity Exchange, (C) the
issuance of shares upon the exercise of employee stock options issued pursuant
to the Company Option Plans, (D) the issuance of shares as set forth on Section 7.1(u) of
the Company Disclosure Letter, or (E) the issuance of shares to existing
holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9;


 


(viii)        [Intentionally Omitted]


 


(ix)           if the Bankruptcy Court shall have entered a final and
non-appealable order denying confirmation of the Plan;


 


(x)            if this Agreement, including the Plan Summary Term Sheet,
or the Plan, is revised or modified (except as otherwise permitted pursuant to
this Agreement) by the Company or an order of the Bankruptcy Court or other
court of competent jurisdiction in a manner that is unacceptable to Purchaser
or a plan of reorganization with respect to the Debtors involving the
Transactions that is unacceptable to Purchaser is filed by the Debtors with the
Bankruptcy Court or another court of competent jurisdiction;


 


(xi)           if any Governmental Entity of competent jurisdiction shall
have issued a final and nonappealable order permanently enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this Agreement
(the “Closing Restraint”);


 


(xii)          prior to the issuance of the Warrants, if the Company (A) makes
a public announcement, enters into an agreement or files any pleading or
document with the Bankruptcy Court, in each case, evidencing its decision to
support any Competing 


 


65

















 


Transaction, or the Company
or any Subsidiary of the Company enters into a definitive agreement providing
for a Competing Transaction or (B) the Company provides notice to
Purchaser of the Company’s or any of its Subsidiaries’ decision to enter into a
definitive agreement providing for a Competing Transaction pursuant to Section 5.7;
or


 


(c)           by the Company upon the occurrence of any of the following
events:


 


(i)            if the Effective Date and the purchase and sale
contemplated by Article I have not occurred by the Termination
Date; provided, however, that the right to terminate this
Agreement under this Section 11.1(c)(i) shall not be available
to the Company to the extent that it has breached in any material respect its
obligations under this Agreement in any manner that shall have proximately
caused the Closing Date not to occur on or before the Termination Date (it
being agreed that this proviso shall not limit the Company’s ability to
terminate this Agreement pursuant to Section 11.1(c)(ii) or
any other clause of this Section 11.1(c));


 


(ii)           prior to the entry of the Confirmation Order, upon notice
to Purchaser, for any reason or no reason, effective as of such time as shall
be specified in such notice; provided, however, that prior to the entry of the
Approval Order, the Company shall not have the right to terminate this
Agreement under this Section 11.1(c)(ii) during the 48 hour
notice period contemplated by Section 5.7;


 


(iii)          if all conditions to the obligations of Purchaser to
consummate the transactions contemplated by this Agreement set forth in Article VII
shall have been satisfied (other than those conditions that are to be satisfied
(and capable of being satisfied) by action taken at the Closing if Purchaser
had complied with its obligations under this Agreement) and the transactions
contemplated by this Agreement fail to be consummated as a result of the
failure of Purchaser to have paid to the Company and GGO, as applicable, all
amounts payable by Purchaser under Article I and Article II
of this Agreement, by wire transfer of immediately available funds in
accordance with the terms of this Agreement;


 


(iv)          if as of the twentieth (20th) day (or if this twentieth (20th) day is not a Business Day
the next Business Day following the date of this Agreement), Purchaser has not (i) received
an executed equity commitment from Brookfield Asset Management Inc. (the “Brookfield
Equity Commitment Letter”) in the form attached hereto as Exhibit K
and (ii) either (A) entered into escrow agreements with members of
Purchaser (each an “Equity Provider”) in the form attached hereto as Exhibit L
(each an “Escrow Agreement”, and together, the “Escrow Agreements”)
pursuant to which such members of Purchaser shall have deposited into an escrow
account with Deutsche Bank National Trust Company such funds that when taken
together with the commitment contemplated by the Brookfield Equity Commitment
Letter shall be sufficient in the aggregate to pay the Purchase Price and the
GGO Purchase Price, or (B) such members of Purchaser shall have
established one or more Acceptable LCs (as defined in the Escrow Agreements) in
lieu of one or more of the escrow accounts contemplated by the Escrow
Agreements; or


 


(v)           if a Closing Restraint is in effect.


 


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SECTION 11.2               Effects of Termination.


 


(a)           In the event of the termination of this Agreement pursuant
to Article XI, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of any party hereto except
after the entry of the Approval Order the covenants and agreements made by the
parties herein under Section 5.1(c), Section 5.14(a), Article IX
and in all circumstances Article XIII shall survive indefinitely in
accordance with their terms.  Except as
otherwise expressly provided in the Warrants or paragraph (b) below, the
Warrants when issued in accordance with Section 5.2 hereof and all
obligations of the Company under the Warrant Agreement shall survive any
termination of this Agreement.


 


(b)           In the event of a termination of this Agreement by the
Company pursuant to Section 11.1(c)(iii), the Warrants shall
automatically be canceled, shall no longer be outstanding or capable of
exercise and shall cease to exist.  The
foregoing shall be a term of the Warrants.


 


ARTICLE XII


 


DEFINITIONS


 


SECTION 12.1               Defined Terms.  For purposes of this Agreement, the following
terms, when used in this Agreement with initial capital letters, shall have the
respective meanings set forth in this Agreement:


 


(a)           “2006 Bank Loan” means that certain Second Amended
and Restated Credit Agreement, dated as of February 24, 2006, by and among
the Company, the Operating Partnership and GGPLP L.L.C., as borrowers, the
lenders named therein, Banc of America Securities LLC, Eurohypo AG, New York
Branch and Wachovia Capital Markets, LLC, as joint arrangers and joint
bookrunners, Eurohypo AG, New York Branch, as administrative agent, Bank of America,
N.A. and Wachovia Bank, National Association, as syndication agents, and
Commerzbank AG and Lehman Commercial Paper, Inc., as co-documentation
agents.


 


(b)           “Additional Sales Period” means in the case of Section 5.9(a)(iv)(A),
the 120 day period following the date of the Company’s notice to Purchaser
pursuant to Section 5.9(a)(ii), and in the case of Section 5.9(a)(iv)(B),
the 120 day period following (x) the expiration of the 180 day period
specified in Section 5.9(a)(iii) or (y) if earlier, the
date on which it is finally determined that Purchaser is unable to consummate
such purchase contemplated by Section 5.9(a)(iii) within such
180 day period specified in Section 5.9(a)(iii).


 


(c)           “Affiliate” of any particular Person means any
other Person controlling, controlled by or under common control with such
particular Person.  For the purposes of
this definition, “control” means the possession, directly or indirectly, of the
power to direct the management and policies of a Person whether through the ownership
of voting securities, contract or otherwise.


 


(d)           “Brazilian Entities” means those certain Persons in
which the Company indirectly owns an interest which own real property assets or
have operations located in Brazil.


 


67

















 


(e)           “Brookfield Consortium Member” means Brookfield
Asset Management Inc. or any controlled Affiliate of Brookfield Asset
Management Inc. or any Person of which Brookfield Asset Management Inc. or any
Subsidiary or controlled Affiliate of Brookfield Asset Management Inc. is a
general partner, managing member or equivalent thereof or a wholly owned
subsidiary of the foregoing.


 


(f)            “Business Day” means any day other than (a) a
Saturday, (b) a Sunday, (c) any day on which commercial banks in New
York, New York are required or authorized to close by Law or executive order.


 


(g)           “Cash Equivalents” means as to any Person, (a) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided, that
the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than 90 days from the date of acquisition by such
Person, (b) time deposits and certificates of deposit of any commercial
bank having, or which is the principal banking subsidiary of a bank holding
company organized under the Laws of the United States, any State thereof or the
District of Columbia having capital, surplus and undivided profits aggregating
in excess of $500,000,000, having maturities of not more than 90 days from the
date of acquisition by such Person, (c) repurchase obligations with a term
of not more than 90 days for underlying securities of the types described in
subsection (a) above entered into with any bank meeting the
qualifications specified in subsection (b) above, (d) commercial
paper issued by any issuer rated at least A-1 by S&P or at least P-1 by
Moody’s or carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of
commercial paper issuers generally, and in each case maturing not more than one
year after the date of acquisition by such Person or (e) investments in
money market funds substantially all of whose assets are comprised of
securities of the types described in subsections (a) through (d) above.


 


(h)           “Clawback Fee” means the aggregate of the $0.25 per
share fees paid by the Company to the Fairholme Investors and the Pershing
Investors on the Effective Date in accordance with Section 1.4 of the
Fairholme Agreement and the Pershing Agreement.


 


(i)            “Claims” shall have the meaning set forth in
section 101(5) of the Bankruptcy Code.


 


(j)            “Closing Date Net Debt” means, as of the Effective
Date but prior to giving effect to the Plan, the sum of, without duplication:


 


(i)                                     the aggregate
outstanding Proportionally Consolidated Debt plus any accrued and unpaid
interest thereon (including the Contingent and Disputed Debt Claims) plus the
amount of the New Debt,


 


(ii)                                  less the Reinstatement
Adjustment Amount,


 


(iii)                               plus the
Permitted Claims Amount,


 


(iv)                              plus the amount
of Proportionally Consolidated Debt attributable to assets of the Company, its
Subsidiaries and other Persons in which the Company, 


 


68

















 


directly or indirectly,
holds a minority interest sold, returned, abandoned, conveyed, transferred or
otherwise divested during the period between the date of this Agreement and
through the Closing, but excluding any deficiency, guaranty or other similar
claims associated with the Special Consideration Properties (as such term is
defined in the plan of reorganization for the applicable Confirmed Debtor),


 


(v)                                 less
Proportionally Consolidated Unrestricted Cash; provided, however, that the net
proceeds attributable to sales of assets of the Company, its Subsidiaries and
other Persons in which the Company, directly or indirectly, holds a minority
interest sold, returned, abandoned, conveyed, or otherwise transferred during
the period between the date of this Agreement and through the Closing shall be
deducted prior to subtracting Proportionally Consolidated Unrestricted Cash.


 


(k)           “Closing Date Net Debt W/O Reinstatement Adjustment and
Permitted Claims Amounts” means, as of the Effective Date but prior to
giving effect to the Plan, the sum of, without duplication:


 


(i)                                     the aggregate
outstanding Proportionally Consolidated Debt plus any accrued and unpaid
interest thereon plus the amount of the New Debt,


 


(ii)                                  plus the amount
of Proportionally Consolidated Debt attributable to assets of the Company, its
Subsidiaries and other Persons in which the Company, directly or indirectly,
holds a minority interest sold, returned, abandoned, conveyed, transferred or
otherwise divested during the period between the date of this Agreement and
through the Closing, but excluding any deficiency, guaranty or other similar
claims associated with the Special Consideration Properties (as such term is
defined in the plan of reorganization for the applicable Confirmed Debtor), and


 


(iii)                               less
Proportionally Consolidated Unrestricted Cash; provided, however, that the net
proceeds attributable to sales of assets of the Company, its Subsidiaries and
other Persons in which the Company, directly or indirectly, holds a minority
interest sold, returned, abandoned, conveyed, or otherwise transferred during
the period between the date of this Agreement and through the Closing shall be
deducted prior to subtracting Proportionally Consolidated Unrestricted Cash.


 


(l)            “Company Benefit Plan” means each “employee
benefit plan” within the meaning of Section 3(3) of ERISA and each
other stock purchase, stock option, restricted stock, severance, retention,
employment, consulting, change-of-control, collective bargaining, bonus,
incentive, deferred compensation, employee loan, fringe benefit and other
benefit plan, agreement, program, policy, commitment or other arrangement,
whether or not subject to ERISA (including any related funding mechanism now in
effect or required in the future), whether formal or informal, oral or written,
in each case sponsored or maintained by the Company or any of its Significant
Subsidiaries for the benefit of any past or present director, officer,
employee, 


 


69

















 


consultant or independent contractor of the Company
or any of its Significant Subsidiaries has any present or future right to
benefits.


 


(m)          “Company Board” means the board of directors of the
Company.


 


(n)           “Competing Transaction”  means, other than the transactions
contemplated by this Agreement or the Plan Summary Term Sheet, or by the
Fairholme/Pershing Agreements, any offer or proposal relating to (i) a
merger, consolidation, business combination, share exchange, tender offer,
reorganization, recapitalization, liquidation, dissolution or similar
transaction involving the Company or (ii) any direct or indirect purchase
or other acquisition by a “person” or “group” of “beneficial ownership” (as
used for purposes of Section 13(d) of the Exchange Act) of, or a
series of transactions to purchase or acquire, assets representing 30% or more
of the consolidated assets or revenues of the Company and its Subsidiaries
taken as a whole or 30% or more of the Common Stock of the Company (or
securities convertible into or exchangeable or exercisable for 30% or more of
the Common Stock of the Company) or (iii) any recapitalization of the
Company or the provision of financing to the Company that shall cause any
condition in Section 7.1 not to be satisfied, in each case, other
than the recapitalization and financing transactions contemplated by this
Agreement and the Plan Summary Term Sheet (or the financing provided by the
Fairholme/Pershing Investors pursuant to the Fairholme/Pershing Agreements) or
that will be effected together with the transactions contemplated hereby.


 


(o)           “Conclusive Net Debt Adjustment Statement” means a
statement that: (i) sets forth each of the five components of the Closing
Date Net Debt (for the avoidance of doubt, this shall include (x) the Permitted
Claims Amount, which shall include the Reserve, (y) the Reinstatement
Adjustment Amount, and (z) with respect to clauses (i), (iv) and (v) of
the definition of Closing Date Net Debt, the Closing Date Net Debt Amount W/O
Reinstatement Adjustment and Permitted Claims Amounts as determined through the
process provided for in Sections 5.17(a) and 5.17(b) shall
be used; provided, however, that such amounts shall be updated to
reflect current information regarding cash, Claims, Debt and other similar
information and any amendments to this Agreement agreed upon following
completion of the process provided for in Sections 5.17(a) and 5.17(b)),
and (ii) sets forth the Net Debt Excess Amount or the Net Debt Surplus
Amount, as applicable.


 


(p)           “Contingent and Disputed Debt Claims” means
contingent and disputed claims for default interest on (i) that certain
promissory note, dated February 8, 2008, by GGP Limited Partnership in
favor of The Comptroller of the State of New York, (ii) that certain
promissory note, dated February 15, 2007, by GGP Limited Partnership in
favor of Ivanhoe Capital LP, and (iii) the loan made to GGP, GGP Limited
Partnership and GGPLP L.L.C., as borrowers, under that certain Second Amended
and Restated Credit Agreement, dated as of February 24, 2006, under which
Eurohypo AG, New York Branch is the Administrative Agent and any amendments,
modifications or supplements thereto, in each case to the extent that any such
claims have not been ruled on by the Bankruptcy Court or settled prior to the
Effective Date.


 


(q)           “Contract” means any agreement, lease, license,
evidence of indebtedness, mortgage, indenture, security agreement or other
contract.


 


(r)            [Intentionally Omitted.]


 


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(s)           “Corporate Level Debt” means the debt described in
Sections II A, H through O, Q, R, S, W and X of the Plan Summary Term Sheet
plus accrued and unpaid interest thereon.


 


(t)            “Debt” means all obligations of the Company, its
Subsidiaries and other Persons in which the Company, directly or indirectly,
holds a minority interest (a) evidenced by (i) notes, bonds,
debentures or other similar instruments (including, for avoidance of doubt,
mezzanine debt), or (ii) trust preferred shares, trust preferred units and
other preferred instruments, and/or (b) secured by a lien, mortgage or
other encumbrance; provided, however, that Debt shall exclude
(x) any form of municipal financing including, but not limited to, special
improvement district bonds or tax increment financing, (y) an agreement
for the use or possession of property creating obligations that do not appear
on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment), and (z) intercompany
notes or preferred interests between and among the Company and its wholly owned
Subsidiaries.


 


(u)           “DIP Loan” means that certain Senior Secured Debtor
in Possession Credit, Security and Guaranty Agreement, dated as of May 15,
2009, by and among the lenders named therein, UBS AG, Stamford Branch, as
administrative agent for the lenders, the Company and the Operating
Partnership, as borrowers, and the certain subsidiaries of the Company named
therein, as guarantors.


 


(v)           “Disclosure Statement” means the disclosure
statement to accompany the Plan as amended, modified or supplemented.


 


(w)          “ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.


 


(x)            “Excess Surplus Amount” means the sum of:  (i) if, after giving effect to the
application of the Reserve Surplus Amount to reduce the principal amount of the
GGO Promissory Note pursuant to Section 5.17(d), any Reserve
Surplus Amount remains, (A) if and to the extent that such Reserve Surplus
Amount is less than or equal to the Net Debt Surplus Amount, 80% of such
remaining Reserve Surplus Amount, and otherwise (B) 100% of the remaining
Reserve Surplus Amount; and (ii) (A) if a GGO Promissory Note is
required to be issued at Closing, 80% of the aggregate Offering Premium, if
any, less the amount of any reduction in the principal amount of the GGO
Promissory Note pursuant to Section 5.17(e) hereof, or (B) if
the GGO Promissory Note is not required to be issued at Closing, the sum of (x) 80%
of the aggregate Offering Premium and (y) the excess, if any, of 80% of
the Net Debt Surplus Amount over the Hughes Amount.


 


(y)           “Exchangeable Notes” means the 3.98% Exchangeable
Senior Notes Due 2027 issued pursuant to that certain Indenture, dated as of April 16,
2007, by and between the Operating Partnership, as issuer, and The Bank of New
York Mellon Corporation, as trustee.


 


(z)            “Excluded Claims” means:


 


(i)                                     prepetition and
postpetition Claims secured by cashiers’, landlords’, workers’, mechanics’,
carriers’, workmen’s, repairmen’s and materialmen’s liens and other similar
liens,


 


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(ii)                                  except with
respect to Claims related to GGO or the assets or businesses contributed
thereto, prepetition and postpetition Claims for all ordinary course trade
payables for goods and services related to the operations of the Company and
its Subsidiaries (including, without limitation, ordinary course obligations to
tenants, anchors, vendors, customers, utility providers or forward contract
counterparties related to utility services, employee payroll, commissions,
bonuses and benefits (but excluding the Key Employee Incentive Plan approved by
the Bankruptcy Court pursuant to an order entered on October 15, 2009 at docket
no. 3126), insurance premiums, insurance deductibles, self insured amounts and
other obligations that are accounted for, consistent with past practice prior
to the Petition Date, as trade payables); provided, however, that Claims or
expenses related to the administration and conduct of the Bankruptcy Cases
(such as professional fees and disbursements of financial, legal and other
advisers and consultants retained in connection with the administration and
conduct of the Company’s and its Subsidiaries’ Bankruptcy Cases and other
expenses, fees and commissions related to the reorganization and
recapitalization of the Company pursuant to the Plan, including related to this
Agreement, the Pershing/Fairholme Agreements, the issuance of the New Debt,
Liquidity Equity Issuances and any other equity issuances contemplated by this
Agreement and the Plan) shall not be Excluded Claims,


 


(iii)                               except with
respect to Claims related to GGO or the assets or businesses contributed
thereto, Claims and liabilities arising from the litigation or potential
litigation matters set forth in that certain Interim Litigation Report of the
Company dated March 29, 2010 and the Company’s litigation audit response to
Deloitte & Touche dated February 25, 2010, both have been made available to
Purchaser prior to close of business on March 29, 2010 and other Claims and
liabilities arising from ordinary course litigation or potential litigation
that was not included in such schedule solely because the amount of estimated
or asserted liabilities or Claims did not meet the threshold amount used for
the preparation of such schedule, in each case, to the extent that such Claims and
liabilities have not been paid and satisfied as of the Effective Date, are
continuing following the Effective Date, excluding Claims against or interests
in the Debtors arising under or related to the Hughes Agreement (for the
avoidance of doubt, Permitted Claims shall include $10 million to be paid in
cash with respect to attorneys fees and expenses in connection with the
settlement related to the Hughes Heirs Obligations),


 


(iv)                              except with
respect to Claims related to GGO or the assets or businesses contributed
thereto, all tenant, anchor and vendor Claims required to be cured pursuant to
section 365 of the Bankruptcy Code, in connection with the assumption of an
executory contract or unexpired lease under the Plan,


 


72

















 


(v)                                 any deficiency,
guaranty or other similar Claims associated with the Special Consideration
Properties (as such term is defined in the plans of reorganization for the
applicable Confirmed Debtors),


 


(vi)                              MPC Taxes,


 


(vii)                           surety bond
Claims relating to Claims of the type identified in clauses (i) through (vi) of
this definition,


 


(viii)                        GGO Setup Costs
(other than professional fees and disbursements of financial, legal and other
advisers and consultants retained in connection with the administration and
conduct of the Company’s and its Subsidiaries’ Bankruptcy Cases), and


 


(ix)                                any liabilities
assumed by GGO and paid on the Effective Date by GGO or to be paid after the
Effective Date by GGO (for avoidance of doubt, this includes any Claims that,
absent assumption of the liability by GGO, would be a Permitted Claim).


 


(aa)         “Fully Diluted Basis” means all outstanding shares of
the Common Stock, New Common Stock or GGO Common Stock, as applicable, assuming
the exercise of all outstanding Share Equivalents (other than (x) any options
issued to an employee of the Company or its Subsidiaries pursuant to the terms
of a Company Benefit Plan or to an employee of GGO or its Subsidiaries pursuant
to the terms of an employee equity plan of GGO or (y) preferred UPREIT Units)
without regard to any restrictions or conditions with respect to the
exercisability of such Share Equivalents.


 


(bb)         “GAAP” means generally accepted accounting principles
in the United States.


 


(cc)         “GGO Common Share Amount” means 32,468,326 plus a
number (rounded up to the nearest whole number) equal to 0.1 multiplied by the
number of shares of Common Stock issued on or after the Measurement Date and
prior to the record date of the GGO Share Distribution as a result of the exercise,
conversion or exchange of any Share Equivalents of the Company outstanding on
the Measurement Date into Common Stock and employee stock options issued
pursuant to the Company Option Plans.


 


(dd)         “GGO Note Amount” means:  (i) in the event there is a Net Debt Excess
Amount, the sum of the Net Debt Excess Amount set forth on the Conclusive Net
Debt Adjustment Statement and the Hughes Heirs Obligations to the extent
satisfied with assets of the Company (including cash (but excluding any cash
paid prior to the Effective Date in settlement or satisfaction of Hughes Heirs
Obligations which had the effect of reducing Proportionally Consolidated
Unrestricted Cash for purposes of calculating Closing Date Net Debt, Closing
Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts, and
Net Debt Excess Amount/Net Debt Surplus Amount, as applicable) or shares of New
Common Stock, but excluding Identified Assets) (such amount so satisfied, but
excluding $10 million to be paid in cash with respect to attorneys fees and
expenses, the “Hughes Amount”); and (ii) in the event there is a Net
Debt Surplus Amount, the Hughes Amount less 80% of the Net Debt Surplus Amount,
provided, that in no event shall the GGO Note Amount be less than zero.


 


73

















 


(ee)         “GGO Promissory Note” means an unsecured promissory
note payable by GGO (or one of its Subsidiaries, provided that the GGO
Promissory Note is guaranteed by GGO) in favor of the Operating Partnership in
the aggregate principal amount of the GGO Note Amount, as adjusted pursuant to Section
5.17(d), Section 5.17(e) and Section 5.17(g), (i) bearing
interest at a rate equal to the lower of (x) 7.5% per annum and (y) the
weighted average effective rate of interest payable (after giving effect to the
payment of any underwriting and all other discounts, fees and any other
compensation) on each series of New Debt issued in connection with the Plan and
(ii) maturing on the fifth anniversary of the Closing Date (or if such date is
not a Business Day, the next immediately following Business Day), and (iii)
including prohibitions on dividends and distributions, no financial covenants
and such other customary terms and conditions as reasonably agreed to by
Purchaser and the Company.


 


(ff)                                [Intentionally
Omitted.]


 


(gg)         “GGO Setup Costs” means such cash liabilities, costs
and expenses as may be incurred by the Company or its Subsidiaries in
connection with the formation and organization of GGO and the implementation of
the GGO Share Distribution, including any and all liabilities for any sales,
use, stamp, documentary, filing, recording, transfer, gross receipts,
registration, duty, securities transactions or similar fees or Taxes or
governmental charges (together with any interest or penalty, addition to Tax or
additional amount imposed) as levied by any taxing authority, in each case,
determined as of the Effective Date and further including, to the extent the
Company or any Subsidiary of the Company has made or will make a payment to reduce
the principal amount of the mortgage related to 110 N. Wacker Drive, Chicago,
Illinois, then 50% of any such payment or contractual obligation to make a
payment.


 


(hh)         [Intentionally Omitted.]


 


(ii)           “Governmental Entity” means any (a) nation, region,
state, province, county, city, town, village, district or other jurisdiction,
(b) federal, state, local, municipal, foreign or other government, (c)
governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, court or tribunal, or other entity),
(d) multinational organization or body or (e) body entitled to exercise any
administrative, executive, judicial, legislative, police, regulatory or taxing
authority or power of any nature or any other self-regulatory organizations.


 


(jj)           “Hughes Agreement” means that certain Contingent
Stock Agreement, effective as of January 1, 1996, by The Rouse Company in favor
of and for the benefit of the Holders (named in Schedule I thereto) and the
Representatives (therein defined), as amended.


 


(kk)         “Hughes Heirs Obligations” means claims or interests
against the Debtors arising under or relating to sections 2.07 and 2.08 of the
Hughes Agreement and pertaining to the delivery of contingent shares for
business units to be valued as of December 31, 2009 and claims arising out of
or related to the foregoing.


 


(ll)           “Indebtedness” means,
with respect to a Person without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property (other than trade payables and accrued expenses
incurred in 


 


74

















 


the ordinary
course of such Person’s business), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, trust preferred
shares, trust preferred units and other preference instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations in respect of capital leases under GAAP of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit, surety bond or similar
facilities, (g) the monetary obligations of a Person under
(x) a so-called synthetic, off-balance sheet or tax retention lease, or
(y) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment) (each, a “Synthetic
Lease Obligation”), (h) guaranties
of such Person with respect to obligations of the type described clauses (a)
through (g) above, (i) all obligations of other Persons of the kind referred to
in clauses (a) through (h) above secured by any lien on property owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation, (j) the net obligations of such Person in respect of hedge
agreements and swaps and (k) any obligation that, in accordance with GAAP,
would be required to be reflected as debt on the consolidated balance sheet of
such Person.


 


(mm)       “Joint Venture” means a Subsidiary of the Company which
is owned partly by another Subsidiary of the Company and partly by a third
party.


 


(nn)         “Knowledge” of the Company means the actual
knowledge, as of the date of this Agreement, of the individuals listed on Section
12.1(ll) of the Company Disclosure Letter.


 


(oo)         “Law” means any statutes, laws (including common
law), rules, ordinances, regulations, codes, orders, judgments, decisions,
injunctions, writs, decrees, applicable to the Company or any of its
Subsidiaries or Purchaser, as applicable, or their respective properties or
assets.


 


(pp)         “Liquidity Equity Issuances” means issuances of
shares of New Common Stock in the Plan for cash in an aggregate amount of up to
65,000,000 shares of New Common Stock.


 


(qq)         “Material Adverse Effect” means any change, event or
occurrence which (x) has a material adverse effect on the results of operations
or financial condition of the Company and its direct and indirect Subsidiaries
taken as a whole, other than changes, events or occurrences (i) generally
affecting (A) the retail mall industry in the United States or in a specific
geographic area in which the Company operates, or (B) the economy, or financial
or capital markets, in the United States or elsewhere in the world, including
changes in interest or exchange rates or the availability of capital, or (ii)
arising out of, resulting from or attributable to (A) changes in Law or
regulation or in generally accepted accounting principles or in accounting
standards, or changes in general legal, regulatory or political conditions, (B)
the negotiation, execution, announcement or performance of any agreement
between the Company and/or its Affiliates, on the one hand, and Purchaser
and/or its Affiliates, on the other hand, or the consummation of the
transactions contemplated hereby or operating performance or reputational
issues arising out of or associated with the Bankruptcy Cases, including the
impact thereof on relationships, 


 


75

















 


contractual or otherwise, with tenants, customers,
suppliers, distributors, partners or employees, or any litigation or claims
arising from allegations of breach of fiduciary duty or violation of Law or
otherwise, related to the execution or performance of this Agreement or the
transactions contemplated hereby, including, without limitation, any
developments in the Bankruptcy Cases, (C) acts of war, sabotage or terrorism,
or any escalation or worsening of any such acts of war, sabotage or terrorism
threatened or underway as of the date of the this Agreement, (D) earthquakes,
hurricanes, tornadoes or other natural disasters, (E) any action taken by the
Company or its Subsidiaries as contemplated or permitted by any agreement
between the Company and/or its Affiliates, on the one hand, and Purchaser
and/or its Affiliates, on the other hand, or with Purchaser’s consent, or any
failure by the Company to take any action as a result of any restriction
contained in any agreement between the Company and/or its Affiliates, on the
one hand, and Purchaser and/or its Affiliates, on the other hand, or (F) in
each case in and of itself, any decline in the market price, or change in
trading volume, of the capital stock or debt securities of the Company or any
direct or indirect subsidiary thereof, or any failure to meet publicly
announced or internal revenue or earnings projections, forecasts, estimates or
guidance for any period, whether relating to financial performance or business
metrics, including, without limitation, revenues, net operating incomes, cash
flows or cash positions, it being further understood that any event, change,
development, effect or occurrence giving rise to such decline in the trading
price or trading volume of the capital stock or debt securities of the Company
or such failure to meet internal projections or forecasts as described in the
preceding clause (F), as the case may be, may be the cause of a Material
Adverse Effect; so long as, in the case of clauses (i)(A) and (i)(B), such
changes or events do not have a materially disproportionate adverse effect on
the Company and its Subsidiaries, taken as a whole, as compared to other
entities that own and manage retail malls throughout the United States, or (y)
materially impairs the ability of the Company to consummate the transactions
contemplated by this Agreement or perform its obligations hereunder or under
the other agreements executed in connection with the transactions contemplated
hereby.


 


(rr)           “Material Contract” means, with respect to the
Company and its Subsidiaries, any:


 


(i)                                     Contract that
would be considered a material contract pursuant to Item 601(b)(10) of
Regulation S-K promulgated by the SEC, had the Company been the registrant
referred to in such regulation; or


 


(ii)                                  Contract for
capital expenditures, the future acquisition or construction of fixed assets or
the future purchase of materials, supplies or equipment that provides for the
payment by the Company or its Subsidiaries of more than $5,000,000 and is not
terminable by the Company or any of its Subsidiaries by notice of not more than
sixty (60) days for a cost of less than $1,000,000.


 


(ss)         “MPC Assets” means residential and commercial lots in
the “master planned communities” owned, for federal income tax purposes, by
Howard Hughes Properties, Inc. or The Hughes Corporation or related to the
Emerson Master Planned Community.


 


76

















 


(tt)           “MPC Taxes” means all liability for income Taxes in
respect of sales of MPC Assets sold prior to the date of this Agreement.


 


(uu)         [Intentionally Omitted.]


 


(vv)         “Net Debt Excess Amount” means, the amount, which
shall in no event be less than $0, that is calculated by subtracting the Target
Net Debt from the Closing Date Net Debt (as reflected on the Conclusive Net
Debt Adjustment Statement).


 


(ww)       “Net Debt Surplus Amount” means, the amount, which
shall in no event be less than $0, that is calculated by subtracting Closing
Date Net Debt (as reflected on the Conclusive Net Debt Adjustment Statement)
from the Target Net Debt.


 


(xx)          “Non-Control Agreement” means the Non-Control
Agreement the form of which is attached hereto as Exhibit M.


 


(yy)         “Non-Controlling Properties” means the Company
Properties listed on Section 12.1(ww) of the Company Disclosure
Letter.  Each of the Non-Controlling
Properties is owned by a Joint Venture in which neither the Company nor any of
its Subsidiaries is a controlling entity. 
For purposes of this Section 12.1(yy), the term “control” shall
mean, possession, directly or indirectly, of the power to direct the management
and policies of a Person whether through the ownership of voting securities,
contract or otherwise; provided, however, that the rights of any Person to
exercise Major Decision Rights under a Joint Venture shall not constitute or be
deemed to constitute “control” for the purposes hereof.  “Controlling” and “controlled” shall have
meanings correlative thereto.  For
purposes of this Section 12.1(yy), the term “Major Decision Rights”
shall mean, the right to, directly or indirectly, approve, consent to, veto or
exercise a vote in connection with a Person’s voting or other decision-making
authority in respect of the collective rights, options, elections or
obligations of such Person under a Joint Venture.


 


(zz)          “Offering Premium” means, with respect to any shares
of New Common Stock issued for cash in conjunction with issuances of New Common
Stock or Share Equivalents permitted by
this Agreement (including any Liquidity Equity Issuance) and completed prior to the date that is the last to occur of (x) 45 days
after the Effective Date, (y) the Settlement Date (as defined in the Pershing
Agreement), if applicable, and (z) the Bridge Note Maturity Date (as defined in
the Pershing Agreement), if applicable, the product of (i) (A) the
per share offering price of the shares of New Common Stock (or offering price of Share Equivalents corresponding to one underlying share
of New Common Stock) issued (net of all underwriting and other discounts,
fees or other compensation, and related expenses; provided, that for
purposes hereof, payments to the Fairholme Investors or the Pershing Investors
in accordance with Section 1.4 of the Fairholme Agreement or the Pershing
Agreement, respectively, shall not be considered a discount, fee or other
compensation or related expense) less (B) the Per Share Purchase Price and (ii)
the number of shares of New Common Stock sold pursuant thereto.  For the purposes hereof, the issuance for
cash of notes mandatorily convertible into New Common Stock on the Effective
Date shall constitute an issuance of the underlying number of shares of New
Common Stock for cash at a price per share offering equal to the offering price
for the corresponding amount of notes. 
For the avoidance of doubt, the Clawback Fee will not be taken into
account when calculating Offering Premium.


 


77

















 


(aaa)       “Operating Partnership” means GGP Limited Partnership,
a Delaware limited partnership and a Subsidiary of the Company.


 


(bbb)      “Permitted Claims” means, as of the Effective Date,
other than Excluded Claims, (a) all Claims against the Debtors covered by the
Plan (the “Plan Debtors”) that are classified in those certain classes
of Claims described in Sections II B through E, G and P in the Plan Summary
Term Sheet (the “PMA Claims”), (b) all Claims or other amounts required
to be paid pursuant to the Plan to indenture trustees or similar servicing or
administrative agents, with respect to administrative fees incurred by or
reimbursement obligations owed to such indenture trustees or similar servicing
or administrative agents in their capacity as such under the Corporate Level
Debt documents, (c) any claims of a similar type as the PMA Claims that are or
have been asserted against affiliates of the Plan Debtors that are or were
debtors in the Bankruptcy Cases and for which a plan of reorganization has
already been confirmed (the “Confirmed Debtors”), (d) Claims or
interests against the Debtors arising under or related to the Hughes Agreement
(other than Hughes Heirs Obligations) plus $10 million to be paid in cash with
respect to attorneys fees and expenses in connection with the settlement
related to the Hughes Heirs Obligations, (e) surety bond Claims relating to the
types of Claims identified in clauses (a) through (d) of this definition, and
(f) the Clawback Fee.


 


(ccc)       “Permitted Claims Amount” means, as of the Effective
Date, an amount equal to the sum of, without duplication, (a) the aggregate
amount of accrued and unpaid Permitted Claims that have been allowed (by order
of the Bankruptcy Court or pursuant to the terms of the Plan) as of the
Effective Date, plus (b) the aggregate amount of the reserve to be estimated
pursuant to the Plan with respect to accrued and unpaid Permitted Claims that
have not been allowed or disallowed (in each case by order of the Bankruptcy Court
or pursuant to the terms of the Plan) as of the Effective Date (the “Reserve”),
plus (c) the aggregate amount of the GGO Setup Costs (other than professional
fees and disbursements of financial, legal and other advisers and consultants
retained in connection with the administration and conduct of the Company’s and
its Subsidiaries’ Bankruptcy Cases) as of the Effective Date; provided, however,
that there shall be no duplication with any amounts otherwise included in
Closing Date Net Debt.


 


(ddd)      “Person” means an individual, a group (including a “group”
under Section 13(d) of the Exchange Act), a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a Governmental Entity or any
department, agency or political subdivision thereof.


 


(eee)       “Preliminary Closing Date Net Debt Review Deadline”
means the end of the Preliminary Closing Date Net Debt Review Period, which
date shall be the first business day that is at least twenty (20) calendar days
after delivery of the Preliminary Closing Date Net Debt Schedule, and which
shall be the deadline by which Purchaser shall deliver to the Company a Dispute
Notice.


 


(fff)         “Preliminary Closing Date Net Debt Review Period”
means the period between the Company’s delivery of the Preliminary Closing Date
Net Debt Schedule and the Preliminary Closing Date Net Debt Review Deadline.


 


78

















 


(ggg)      “Proportionally Consolidated Debt” means consolidated
Debt of the Company less (1) all Debt of Subsidiaries of the Company that are
not wholly-owned and other Persons in which the Company, directly or
indirectly, holds a minority interest, to the extent such Debt is included in
consolidated Debt, plus (2) the Company’s share of Debt for each non-wholly
owned Subsidiary of the Company and each other Persons in which the Company,
directly or indirectly, holds a minority interest based on the company’s
pro-rata economic interest in each such Subsidiary or Person or, to the extent
to which the Company is directly or indirectly (through one or more
Subsidiaries or Persons) liable for a percent of such Debt that is greater than
such pro-rata economic interest in such Subsidiary or Person, such larger amount;  provided, however, for purposes of calculating
Proportionally Consolidated Debt, the Debt of the Brazilian Entities shall be
deemed to be $110,437,781.


 


(hhh)      “Proportionally Consolidated Unrestricted Cash” means
the consolidated Unrestricted Cash of the Company less (1) all Unrestricted
Cash of Subsidiaries of the Company that are not wholly-owned and Persons in
which the Company, directly or indirectly, owns a minority interest, to the
extent such Unrestricted Cash is included in consolidated Unrestricted Cash of
the Company, plus (2) the Company’s share of Unrestricted Cash for each
non-wholly owned Subsidiary of the Company and Persons in which the Company,
directly or indirectly, owns a minority interest based on the Company’s
pro-rata economic interest in each such Subsidiary or Person; provided, however,
for purposes of calculating Proportionally Consolidated Unrestricted Cash, the
Unrestricted Cash of the Brazilian Entities shall be deemed to be $82,000,000, provided,
further, that any distributions of Unrestricted Cash made from the date
of this Agreement to the Closing by Brazilian Entities to the Company or any of
its Subsidiaries shall be disregarded for purposes of calculating
Proportionally Consolidated Unrestricted Cash.


 


(iii)          “Reinstatement Adjustment Amount” means
$5,426,250,000.


 


(jjj)          [Intentionally Omitted.]


 


(kkk)       “Reserve Surplus Amount” means, as of any date of
determination, (x) the Reserve minus (y) the aggregate amount paid with respect
to Permitted Claims through such date of determination to the extent such
Permitted Claims were included in the calculation of the Reserve minus (z) any
amount included in the Reserve with respect to Permitted Claims that the
Company Board, based on the exercise of its business judgment and information
available to the Company Board as of the date of determination, considers
necessary to maintain as a reserve against Permitted Claims yet to be paid.


 


(lll)          “Rights Agreement” means that certain Rights
Agreement, dated as of November 18, 1998, by and between the Company and BNY
Mellon Shareowner Services, as successor to Norwest Bank Minnesota, N.A., as
amended on November 10, 1999, December 31, 2001 and November 18, 2008, and from
time to time.


 


(mmm)    “Rouse Bonds” means (i) the 6-3/4% Senior Notes Due 2013
issued pursuant to the Indenture, dated as of May 5, 2006, by and among The
Rouse Company LP and TRC Co-Issuer, Inc., as co-issuers and The Bank of New
York Mellon Corporation, as trustee, (ii) unsecured debentures issued pursuant
to the Indenture, dated as of February 24, 1995, by and 


 


79

















 


between The Rouse Company, as issuer, and The Bank
of New York Mellon Corporation, as trustee, and (iii) any notes to be issued
pursuant to the Plan on the Effective Date by The Rouse Company LP to the
holders of the Rouse Bonds specified in (i) and (ii) above who elect to receive
such notes.


 


(nnn)      “Share Equivalent” means any stock, warrants, rights,
calls, options or other securities exchangeable or exercisable for, or
convertible into, shares of Common Stock, New Common Stock or GGO Common Stock,
as applicable.


 


(ooo)      “Significant Subsidiaries” means the operating
Subsidiaries of the Company that generated revenues in excess of $30,000,000
for the year ended December 31, 2009.


 


(ppp)      “Subsidiary” means, with respect to a Person (including
the Company), (a) a company a majority of whose capital stock with voting
power, under ordinary circumstances, to elect a majority of the directors is at
the time, directly or indirectly, owned by such Person, by a subsidiary of such
Person, or by such Person and one or more subsidiaries of such Person, (b) a
partnership in which such Person or a subsidiary of such Person is, at the date
of determination, a general partner of such partnership, (c) a limited
liability company of which such Person, or a Subsidiary of such Person, is a
managing member or (d) any other Person (other than a company) in which such
Person, a subsidiary of such Person or such Person and one or more subsidiaries
of such Person, directly or indirectly, at the date of determination thereof,
has (i) at least a majority ownership interest or (ii) the power to elect or
direct the election of a majority of the directors or other governing body of
such Person.


 


(qqq)      “Target Net Debt” means $22,970,800,000.


 


(rrr)         “Tax Matters Agreement” means that certain Tax
Matters Agreement to be entered into by the Company and GGO in connection with
the GGO Share Distribution, substantially in the form attached hereto as Exhibit
O.


 


(sss)       “Tax Protection Agreements” means any written agreement
to which the Company, its Operating Partnership or any other Subsidiary is a
party pursuant to which:  (i) in
connection with the deferral of income Taxes of a holder of interests in the
Operating Partnership, the Company, the Operating Partnership or the other
Subsidiaries have agreed to (A) maintain a minimum level of Indebtedness or
continue any particular Indebtedness, (B) retain or not dispose of assets for a
period of time that has not since expired, (C) make or refrain from making Tax
elections, and/or (D) only dispose of assets in a particular manner; and/or
(ii) limited partners of the Operating Partnership have guaranteed Indebtedness
of the Operating Partnership.


 


(ttt)         “Termination Date” means December 31, 2010; provided,
that in the event the Company delivers a written notice (the “Termination
Date Extension Notice”) identifying the applicable clause below pursuant to
which the extension is being effected to Purchaser on or prior to December 31,
2010, the Company may elect to extend the Termination Date if:


 


(i)                                     the
Confirmation Order shall have been entered on or before December 15, 2010, to
any date on or prior to January 31, 2011 (as specified in the Termination Date
Extension Notice), provided that, during such extension, the Company shall use
its reasonable best efforts to take all actions and to 


 


80

















 


do all things necessary,
proper and advisable to consummate the transactions contemplated hereby and to
cause the conditions to Closing to be satisfied in a timely manner; or


 


(ii)                                  (A) all
conditions to the obligations of Purchaser to consummate the Closing set forth
in Article VII shall have been satisfied (other than those conditions
that are to be satisfied (and capable of being satisfied) by action taken at
the Closing if (1) Purchaser and each purchaser under the Fairholme/Pershing
Agreements (each, an “Other Sponsor”) had complied with its obligations
under this Agreement and the Fairholme/Pershing Agreements, as applicable, and
(2) the Brookfield Equity Commitment Letter, the Escrow Agreements and any
letter of credit contemplated thereby (each, a “Funding Document”) had
been complied with) and (B) the transactions contemplated by this Agreement or
the Fairholme/Pershing Agreements fail to be consummated as a result of a
failure of any Funding Document to be complied with, the failure of Purchaser
to fund the amounts it is required to fund pursuant to Article I or the
failure of the Fairholme/Pershing Investors to fund the purchase price under
the Fairholme/Pershing Agreements, to any date on or prior to (X) if either
Fairholme/Pershing Agreement shall not have been terminated in accordance with
its terms and any Other Sponsor fails to fund, March 31, 2011 (as specified in
the Termination Date Extension Notice) in order to pursue remedies against the
non-compliant Other Sponsors or (Y) if Purchaser fails to fund, the earlier of
the one (1) year anniversary of the date of a Termination Date Extension Notice
given pursuant to this clause (Y) and December 31, 2011 (as specified in the
Termination Date Extension Notice) in order to pursue remedies against
Purchaser, in each case, to seek to cause the Closing to be consummated, provided
that, during such extensions specified in clause (X) or (Y) of this clause
(ii), the Company shall use its reasonable best efforts to take all actions and
to do all things necessary, proper and advisable to consummate the transactions
contemplated hereby and to cause the conditions to Closing to be satisfied in a
timely manner.


 


(uuu)      “Transactions” means the purchase of the Shares and the
GGO Shares and the other transactions contemplated by this Agreement.


 


(vvv)      “TRUPS” means certain preferred securities issued by GGP
Capital Trust I.


 


(www)    “Unrestricted Cash” means all cash and Cash Equivalents of
the Company and of the Subsidiaries of the Company, but excluding any cash or
Cash Equivalents that are controlled by or subject to any lien, security interest
or control agreement, other preferential arrangement in favor of any creditor
or otherwise encumbered or restricted in any way; provided that cash and Cash
Equivalents of the Company and of the Subsidiaries of the Company that are
controlled by or subject to any lien, security interest, control agreement,
preferential arrangement or other encumbrance or restriction pursuant to the
New DIP Agreement shall not be excluded from “Unrestricted Cash.”


 


81
















 


(xxx)      “Unsecured Indebtedness” means all indebtedness of the
Company for borrowed money or obligations of the Company evidenced by notes,
bonds, debentures or other similar instruments that are not secured by a lien
on any Company Property or other assets of the Company or any Subsidiary.


 


(yyy)      “UPREIT Units” means preferred or common units of
limited partnership interests of the Operating Partnership.


 


ARTICLE XIII


 


MISCELLANEOUS


 


SECTION 13.1             Notices.  All notices and other communications in
connection with this Agreement shall be in writing and shall be considered
given if given in the manner, and be deemed given at times, as follows:  (x) on the date delivered, if personally
delivered; (y) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic confirmation
of receipt is obtained promptly after completion of transmission; or (z) on
the next Business Day after being sent by recognized overnight mail service
specifying next business day delivery, in each case with delivery charges
pre-paid and addressed to the following addresses:


 


(a)           If to Purchaser, to:


 


REP Investments LLC

c/o Brookfield Asset
Management Inc.

Brookfield Place, Suite 300

181 Bay Street

P.O. Box 762

Toronto, Ontario M5J 2T3

Canada

Attention:                                         Joseph Freedman


Facsimile:                                       (416)
365-9642


 


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


 


Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019

Attention:                           Marc Abrams, Esq.

                                                                                  Gregory B. Astrachan, Esq.

                                                                                  Paul V. Shalhoub, Esq.


Facsimile:                         (212)
728-8111


 


82

















 


(b)           If to the Company, to:


 


General Growth Properties, Inc.

110 N. Wacker Drive

Chicago, IL 60606

Attention:  Ronald L. Gern, Esq.

Facsimile:   (312) 960-5485


 


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


 


Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Attention:                           Marcia L. Goldstein, Esq.


                                                                                  Frederick S. Green, Esq.

                                                                                  Gary T. Holtzer, Esq.

                                                                                  Malcolm E. Landau, Esq.

Facsimile:                           (212) 310-8007


 


SECTION 13.2             Assignment; Third Party
Beneficiaries.  Neither this
Agreement nor any of the rights, interests or obligations under this Agreement
may be assigned by any party without the prior written consent of the other
party.  Notwithstanding the previous
sentence, this Agreement, or Purchaser’s rights, interests or obligations
hereunder, may be assigned or transferred, in whole or in part, by Purchaser to
Brookfield Consortium Members; provided, that any such assignee assumes
the obligations of Purchaser hereunder and agrees in writing to be bound by the
terms of this Agreement in the same manner as Purchaser and the Designation
Conditions are otherwise satisfied. 
Notwithstanding the foregoing or any other provisions herein, no such
assignment shall relieve Purchaser of its obligations hereunder if such
assignee fails to perform such obligations. 
The Company agrees that Purchaser may designate to Blackstone Real
Estate Partners VI L.P., a Delaware limited partnership (together with its
permitted assigns, “Blackstone”), (i) Purchaser’s right to purchase
19,083,970 of the Shares (the “Blackstone Assigned Shares”) and 200,382
of the GGO Shares (together with the Blackstone Assigned Shares, the “Blackstone
Assigned Securities”), in each case, that Purchaser is entitled to purchase
at Closing pursuant to this Agreement, (ii) Purchaser’s right to receive
2,500,000 of the New Warrants (the “Blackstone Assigned Warrants”) and
166,667 of the GGO Warrants, in each case, issuable to Purchaser pursuant to
this Agreement, (iii) Purchaser’s right to receive 7.634% of Purchaser’s
compensation in the form of New Common Stock with respect to the GGP Backstop
Rights Offering and other rights of Purchaser set forth in Section 6.9(a) and
Section 6.9(b) in the event Purchaser designates Blackstone as
one of its designees to subscribe for New Common Stock in such GGP Backstop
Rights Offering, and (iv) Purchaser’s right to receive 7.634% of the
shares of Common Stock (and other Share Equivalents) which are offered to
Purchaser pursuant to Purchaser’s pre-Closing subscription rights set forth in Section 7.1(u) in
the event Purchaser elects to purchase the shares offered to it in such
offering, provided that (1) the Company’s agreement as aforesaid is
subject to Blackstone (A) paying to the Company and GGO, as applicable, by
wire transfer of immediately available funds at the Closing the aggregate
purchase price payable pursuant to this Agreement for the Blackstone Assigned
Securities (the “Blackstone Purchase Price”) and the purchase price for
shares received by Blackstone pursuant 


 


83

















 


to clauses (iii) and (iv) above, (B) agreeing
in a writing reasonably satisfactory to, and for the benefit of, the Company
that the Blackstone Assigned Securities shall be subject to such transfer
restrictions/lock-ups as contemplated by Section 6.4 of the Pershing
Agreement (and not the longer lock-ups applicable to shares sold to Purchaser),
including being subject to a limited 120-day lock-up in connection with certain
equity sales within 30 days of the Effective Date but excluding any
restrictions imposed by the Non-Control Agreement, and (C) entering into
joinder agreements reasonably acceptable to, and for the benefit of, the
Company with respect to the provisions of clause (B) and the registration
rights agreement referred to in the following sentence, and (2) in no
event shall Purchaser be released from any of its obligations hereunder
(including in respect of the Blackstone Assigned Securities) unless and until Blackstone
shall have complied with clauses (A), (B) and (C) above.  In the event of the closing of the purchase
by Blackstone from the Company and GGO, as applicable, of the Blackstone
Assigned Securities and the payment by Blackstone to the Company and GGO, as
applicable, of the Blackstone Purchase Price at Closing as aforesaid, (x) Purchaser
shall be released from the obligation to pay the Company the purchase price for
the Blackstone Assigned Securities (but not from the obligation to pay the
purchase price pursuant to this Agreement for any other Shares or GGO Shares or
other obligations hereunder) and (y) the shelf registration statement
contemplated by Section 7.1(l) of the Pershing Agreement shall cover
the resale by Blackstone of the Blackstone Assigned Shares and the New Common
Stock issuable upon exercise of the Blackstone Assigned Warrants and the
registration rights agreement of the Company referenced in Section 7.1(l) of
the Pershing Agreement shall include Blackstone and its securities to the same
extent as it applies to the Pershing Investors and their securities (except
that demand registration rights shall not be available to Blackstone).  Blackstone may assign the foregoing rights,
in whole or in part, to one or more Affiliates, provided that no such
assignment shall release Blackstone Real Estate Partners VI L.P. from any
obligations assigned by Purchaser to it. 
Except as provided in Article IX with respect to the
Indemnified Persons, this Agreement (including the documents and instruments referred
to in this Agreement) is not intended to and does not confer upon any person
other than the parties hereto any rights or remedies under this Agreement.  Notwithstanding the foregoing or any other
provisions herein to the contrary, Purchaser may not assign any of its rights,
interests or obligations under this Agreement, to the extent such assignment
would affect the securities Laws exemptions applicable to this transaction.


 


SECTION 13.3             Prior Negotiations; Entire
Agreement.  This Agreement (including
the exhibits hereto and the documents and instruments referred to in this
Agreement) constitutes the entire agreement of the parties and supersedes all
prior agreements, arrangements or understandings, whether written or oral,
between the parties with respect to the subject matter of this Agreement,
except that the parties hereto acknowledge that the Confidentiality Agreement
shall continue in full force and effect in accordance with their terms and
shall terminate no earlier than this Agreement.


 


SECTION 13.4             Governing Law; Venue.  THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.  BOTH PARTIES HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF, AND VENUE IN, THE UNITED STATES BANKRUPTCY COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND BOTH PARTIES WAIVE ANY OBJECTION BASED ON
FORUM NON CONVENIENS.


 


84

















 


SECTION 13.5             Company Disclosure Letter.  The Company Disclosure Letter shall be
arranged to correspond to the Articles and Sections of this Agreement, and the
disclosure in any portion of the Company Disclosure Letter shall qualify the
corresponding provision in Article III and any other provision of Article III
to which it is reasonably apparent on the face of the disclosure that such
disclosure relates.  No disclosure in the
Company Disclosure Letter relating to any possible non-compliance, breach or
violation of any Contract or Law shall be construed as an admission that any
such non-compliance, breach or violation exists or has actually occurred.  In the Company Disclosure Letter, (a) all
capitalized terms used but not defined therein shall have the meanings assigned
to them in this Agreement and (b) the Section numbers correspond to
the Section numbers in this Agreement.


 


SECTION 13.6             Counterparts.  This Agreement may be executed in any number
of counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each of the
parties; and delivered to the other party (including via facsimile or other
electronic transmission), it being understood that each party need not sign the
same counterpart.


 


SECTION 13.7             Expenses.  Each party shall bear its own expenses
incurred or to be incurred in connection with the negotiation and execution of
this Agreement and each other agreement, document and instrument contemplated
by this Agreement and the consummation of the transactions contemplated hereby
and thereby.


 


SECTION 13.8             Waivers and Amendments.  This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions of
this Agreement may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance, and
subject, to the extent required, to the approval of the Bankruptcy Court.  No delay on the part of any party in
exercising any right, power or privilege pursuant to this Agreement shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any right, power or privilege pursuant to this Agreement, nor shall any single
or partial exercise of any right, power or privilege pursuant to this
Agreement, preclude any other or further exercise thereof or the exercise of
any other right, power or privilege pursuant to this Agreement.  The rights and remedies provided pursuant to
this Agreement are cumulative and are not exclusive of any rights or remedies
which any party otherwise may have at law or in equity.


 


SECTION 13.9             Construction.


 


(a)           The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.


 


(b)           Unless the context otherwise requires, as used in this
Agreement:  (i) an accounting term not
otherwise defined in this Agreement has the meaning ascribed to it in
accordance with GAAP; (ii) “or” is not exclusive; (iii) “including”
and its variants mean “including, without limitation” and its variants; (iv) words
defined in the singular have the parallel meaning in the plural and vice versa;
(v) references to “written” or “in writing” include in visual electronic
form; (vi) words of one gender shall be construed to apply to each gender;
(vii) the terms “Article,” “Section,” and “Schedule” refer to the
specified Article, Section, or 


 


85

















 


Schedule of or to this Agreement; and (viii) the
term “beneficially own” shall have the meaning determined pursuant to Rule 13d-3
under the Exchange Act as in effect on the date hereof; provided, however, that
a Person will be deemed to beneficially own (and have beneficial ownership of)
all securities that such Person has the right to acquire, whether such right is
exercisable immediately or with the passage of time or the satisfaction of
conditions.  The terms “beneficial
ownership” and “beneficial owner” have correlative meanings.


 


(c)           Notwithstanding anything to the contrary, and for all
purposes of this Agreement, any public announcement or filing of factual information
relating to the business, financial condition or results of the Company or its
Subsidiaries, or a factually accurate (in all material respects) public
statement or filing that describes the Company’s receipt of an offer or
proposal for a Competing Transaction and the operation of this Agreement with
respect thereto, or any entry into a confidentiality agreement, shall not be
deemed to evidence the Company’s or any Subsidiary’s support, or intention to
support, any Competing Transaction.


 


(d)           In the event of a conflict between the terms and
conditions of this Agreement and the Plan Summary Term Sheet, the terms and
conditions of this Agreement shall govern.


 


SECTION 13.10          Adjustment of Share Numbers and
Prices.  The number of Shares to be
purchased by Purchaser at the Closing pursuant to Article I, the
Per Share Purchase Price, the GGO Per Share Purchase Price, the number of GGO
Shares to be purchased by Purchaser pursuant to Article II and any
other number or amount contained in this Agreement which is based upon the
number or price of shares of GGP or GGO shall be proportionately adjusted for
any subdivision or combination (by stock split, reverse stock split, dividend,
reorganization, recapitalization or otherwise) of the Common Stock, New Common
Stock or GGO Common Stock that occurs during the period between the date of
this Agreement and the Closing.  In
addition, if at any time prior to the Closing, the Company or GGO shall declare
or make a dividend or other distribution whether in cash or property (other
than a dividend or distribution payable in common stock of the Company or GGO,
as applicable, the GGO Share Distribution or a distribution of rights
contemplated hereby), the Per Share Purchase Price or the GGO Per Share
Purchase Price, as applicable, shall be proportionally adjusted thereafter by
the Fair Market Value (as defined in the Warrant Agreement) per share of the
dividend or distribution.  If a
transaction results in any adjustment to the exercise price for and number of
Shares underlying the Warrants pursuant to Article 5 of the Warrant
Agreement, the exercise price for and number of shares underlying each of the
New Warrants and GGO Warrants described in Section 5.2 of this
Agreement shall be adjusted for that transaction in the same manner.


 


SECTION 13.11          Certain Remedies.


 


(a)           The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms.  It
is accordingly agreed that, subject to clause (c) below, the parties shall
be entitled to specific performance of the terms of this Agreement.  This right shall include the right of the
Company to (i) fully enforce, or require Purchaser to fully enforce, the
terms of the Brookfield Equity Commitment Letter against the Equity Provider
party thereto to the fullest extent possible pursuant to the Brookfield Equity
Commitment Letter and applicable Law and (ii) require Purchaser to deliver
a Closing Funding Certification (as defined in the Escrow Agreements) in 


 


86

















 


accordance with, and subject to, the applicable
provisions of the Escrow Agreement, including Section 4(d) thereof
(or the corollary provisions of any Acceptable LC) and upon concurrent funding
pursuant to the Brookfield Equity Commitment Letter (the financing referred to
in clauses (i) and (ii) of this Section 13.11(a) being
referred to herein as the “Equity Financing”) and to cause Purchaser to
pay the Purchase Price and the GGO Purchase Price and consummate the
Transactions on the terms and subject to the provisions set forth in this
Agreement.  It is explicitly agreed that
the Company shall be entitled to seek specific performance of Purchaser’s
obligation to cause the Equity Financing to be funded to fund the Purchase
Price and the GGO Purchase Price only in the event that (x) all conditions
in Article VII have been satisfied (other than those conditions
that are to be satisfied (and capable of being satisfied) by action taken at
the Closing if Purchaser had complied with its obligations under this Agreement
and the Financing Commitments had been complied with) at the time when the
Closing would have occurred but for the failure of the Purchase Price and the
GGO Purchase Price to be funded, and (y) the Company has irrevocably
confirmed that if specific performance is granted and the Purchase Price and
the GGO Purchase Price are funded, then the Closing will occur.  Each of the parties hereto hereby waives (i) any
defenses in any action for specific performance, including the defense that a
remedy at law would be adequate and (ii) any requirement under any Law to
post a bond or other security as a prerequisite to obtaining equitable
relief.  Further, the parties agree that
the Company’s right to demand specific performance of the purchase obligations
contained herein shall be limited to complete performance, and not subject to
partial performance or the sale of less than all of the Shares to be purchased
by Purchaser hereunder and shall be further conditioned upon the concurrent
funding pursuant to, and in accordance with, the Brookfield Equity Commitment
Letter.


 


(b)           THE COMPANY HEREBY AGREES
THAT, PRIOR TO THE CLOSING, SPECIFIC PERFORMANCE (AND AN INJUNCTION OR
INJUNCTIONS, WITHOUT NECESSITY OF PROVING DAMAGES OR POSTING A BOND OR OTHER
SECURITY, TO PREVENT BREACHES OF THIS AGREEMENT) SHALL BE ITS SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO BREACHES BY PURCHASER IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THAT IT MAY NOT SEEK
OR ACCEPT ANY OTHER FORM OF RELIEF THAT MAY BE AVAILABLE FOR BREACH
UNDER THIS AGREEMENT, THE ESCROW AGREEMENTS, THE BROOKFIELD EQUITY COMMITMENT
LETTER, ANY ACCEPTABLE LC OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING MONETARY DAMAGES).


 


(c)           Prior to the entry of the Confirmation Order, other than
with respect to (i) the indemnification obligations of the Company set
forth in Article IX and (ii) the Company’s obligations under Section 5.1(c),
Purchaser’s right to receive the Warrants on the terms and subject to the
conditions set forth in this Agreement shall constitute the sole and exclusive
remedy of any nature whatsoever (whether for monetary damages, specific
performance, injunctive relief, or otherwise) of Purchaser against the Company
for any harm, damage or loss of any nature relating to or as a result of any
breach of this Agreement by the Company or the failure of the Closing to occur
for any reason; provided, that, following the entry of the Approval 


 


87

















 


Order, Purchaser shall be entitled to specific
performance of the Company’s obligation to issue the Warrants as well as the
Company’s obligations under Article IX and Section 5.1(c) hereof.


 


(d)           Following entry of the Confirmation Order, Purchaser shall
be entitled to specific performance of terms of this Agreement, in addition to
any other applicable remedies at law.


 


(e)           Following the Closing, each of the parties shall be
entitled to an injunction or injunctions (without necessity of proving damages
or posting a bond or other security) to prevent breaches of this Agreement, and
to enforce specifically the terms and provisions of this Agreement, in addition
to any other applicable remedies at law or equity.


 


(f)            The Company, on behalf of itself and its respective
heirs, successors, and assigns, hereby covenants and agrees never to institute
or cause to be instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any member of
Purchaser by reason of or in connection with the Transaction, provided,
however, that nothing shall prohibit the Company from instituting an action for
specific performance against Purchaser in connection with this Agreement in
accordance with the provisions of this Section 13.11 or from
instituting an action against Escrow Agent for release of the Escrow Amounts.


 


SECTION 13.12          Bankruptcy Matters.  For the avoidance of doubt, all obligations
of the Company and its Subsidiaries in this Agreement are subject to and
conditioned upon (a) with respect to the issuance of the Warrants and the
other obligations contained in the Approval Order, including approval of the
indemnification provisions of Article IX hereof, entry of the
Approval Order, and (b) with respect to the remainder of the provisions
hereof, entry of the Confirmation Order.


 


[Signature Page Follows]


 


88

















 


IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed and delivered by each of them or their respective
officers thereunto duly authorized, all as of the date first written above.


 


	
   

  	
  GENERAL GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Name: Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Title: President and Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BROOKFIELD RETAIL HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  (formerly REP Investments LLC)

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  Brookfield Asset Management Private

  Institutional Capital Adviser (Canada) L.P.,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Brookfield Private Funds Holdings Inc.,

  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Karen Ayre

  
	
   

  	
   

  	
   

  	
  Name: Karen Ayre

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Moshe Mandelbaum

  
	
   

  	
   

  	
   

  	
  Name: Moshe Mandelbaum

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  



 


[SIGNATURE PAGE OF AMENDED
AND RESTATED CORNERSTONE INVESTMENT AGREEMENT]