Exhibit 10.2


 


EXECUTION VERSION


 




 





AMENDED AND RESTATED


 


STOCK PURCHASE AGREEMENT


 


effective as of March 31, 2010


 


between


 


THE PURCHASERS PARTY HERETO


 


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

  
	
   

  	
   

  	
   

  
	
  Section 1.4

  	
  Company
  Election to Replace Certain Shares; Company Election to Reserve and
  Repurchase Certain Shares

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 1.5

  	
  Pro
  Rata Reductions with Pershing Agreement

  	
  6

  
	
   

  	
   

  	
   

  
	
  Article II

  	
  GGO
  SHARE DISTRIBUTION AND PURCHASE OF GGO COMMON STOCK

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  GGO
  Share Distribution

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Purchase
  of GGO Common Stock

  	
  7

  
	
   

  	
   

  	
   

  
	
  Article III

  	
  REPRESENTATIONS
  AND WARRANTIES OF THE COMPANY

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Organization
  and Qualification

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Corporate
  Power and Authority

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Execution
  and Delivery; Enforceability

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Authorized
  Capital Stock

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Issuance

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  No
  Conflict

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Consents
  and Approvals

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Company
  Reports

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  No
  Undisclosed Liabilities

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  No
  Material Adverse Effect

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  No
  Violation or Default: Licenses and Permits

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Legal
  Proceedings

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.13

  	
  Investment
  Company Act

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  Compliance
  With Environmental Laws

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.15

  	
  Company
  Benefit Plans

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.16

  	
  Labor
  and Employment Matters

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.17

  	
  Insurance

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.18

  	
  No
  Unlawful Payments

  	
  18

  
				



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.19

  	
  No
  Broker’s Fees

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.20

  	
  Real
  and Personal Property

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.21

  	
  Tax
  Matters

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 3.22

  	
  Material
  Contracts

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.23

  	
  Certain
  Restrictions on Charter and Bylaws Provisions; State Takeover Laws

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.24

  	
  No
  Other Representations or Warranties

  	
  25

  
	
   

  	
   

  	
   

  
	
  Article IV

  	
  REPRESENTATIONS
  AND WARRANTIES OF PURCHASER

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Power
  and Authority

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Execution
  and Delivery

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  No
  Conflict

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Consents
  and Approvals

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Compliance
  with Laws

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Legal
  Proceedings

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.8

  	
  No
  Broker’s Fees

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.9

  	
  Sophistication

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Purchaser
  Intent

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.11

  	
  Reliance
  on Exemptions

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.12

  	
  REIT
  Representations

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 4.13

  	
  Financial
  Capability

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.14

  	
  No
  Other Representations or Warranties

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.15

  	
  Acknowledgement

  	
  28

  
	
   

  	
   

  	
   

  
	
  Article V

  	
  COVENANTS
  OF THE COMPANY AND PURCHASER

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Bankruptcy
  Court Motions and Orders

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Warrants,
  New Warrants and GGO Warrants

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  [Intentionally
  Omitted.]

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Listing

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 5.5

  	
  Use
  of Proceeds

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.6

  	
  Access
  to Information

  	
  30

  
				



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.7

  	
  Competing
  Transactions

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.8

  	
  Reservation
  for Issuance

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.9

  	
  Subscription
  Rights

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  [Intentionally
  Omitted.]

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Notification
  of Certain Matters

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Further
  Assurances

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  [Intentionally
  Omitted.]

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Rights
  Agreement; Reorganized Company Organizational Documents

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Stockholder
  Approval

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.16

  	
  Closing
  Date Net Debt

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.17

  	
  Determination
  of Domestically Controlled REIT Status

  	
  41

  
	
   

  	
   

  	
   

  
	
  Article VI

  	
  ADDITIONAL
  COVENANTS OF PURCHASER

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Information

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Purchaser
  Efforts

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Plan
  Support

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Transfer
  Restrictions

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  [Intentionally
  Omitted.]

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  REIT
  Representations and Covenants

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Non-Control
  Agreement

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  [Intentionally
  Omitted.]

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Additional
  Backstop

  	
  45

  
	
   

  	
   

  	
   

  
	
  Article VII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF PURCHASER

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Conditions
  to the Obligations of Purchaser

  	
  46

  
	
   

  	
   

  	
   

  
	
  Article VIII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF THE COMPANY

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Conditions
  to the Obligations of the Company

  	
  55

  
	
   

  	
   

  	
   

  
	
  Article IX

  	
  [INTENTIONALLY
  OMITTED]

  	
  57

  
	
   

  	
   

  	
   

  
	
  Article X

  	
  SURVIVAL
  OF REPRESENTATIONS AND WARRANTIES

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Survival
  of Representations and Warranties

  	
  57

  
	
   

  	
   

  	
   

  
	
  Article XI

  	
  TERMINATION

  	
  57

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Termination

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Effects
  of Termination

  	
  61

  
	
   

  	
   

  	
   

  
	
  Article XII

  	
  DEFINITIONS

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Defined
  Terms

  	
  61

  
	
   

  	
   

  	
   

  
	
  Article XIII

  	
  MISCELLANEOUS

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Notices

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 13.2

  	
  Assignment;
  Third Party Beneficiaries

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 13.3

  	
  Prior
  Negotiations; Entire Agreement

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 13.4

  	
  Governing
  Law; Venue

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 13.5

  	
  Company
  Disclosure Letter

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 13.6

  	
  Counterparts

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 13.7

  	
  Expenses

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 13.8

  	
  Waivers
  and Amendments

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 13.9

  	
  Construction

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 13.10

  	
  Adjustment
  of Share Numbers and Prices

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 13.11

  	
  Certain
  Remedies

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 13.12

  	
  Bankruptcy
  Matters

  	
  82

  
				



 


iv

















 


	
  LIST
  OF EXHIBITS AND SCHEDULES

  
	
   

  	
   

  
	
  Exhibit A:

  	
  Plan
  Summary Term Sheet

  
	
   

  	
   

  
	
  Exhibit B:

  	
  Post-Bankruptcy
  GGP Corporate Structure

  
	
   

  	
   

  
	
  Exhibit C-1:

  	
  Brookfield
  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:

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  
	
  Exhibit L:

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  
	
  Exhibit M:

  	
  Form of
  Non-Control Agreement

  
	
   

  	
   

  
	
  Exhibit N:

  	
  Certain
  REIT Investors

  
	
   

  	
   

  
	
  Exhibit O:

  	
  Form of
  Tax Matters Agreement

  
	
   

  	
   

  
	
  Schedule
  I:

  	
  GGO
  and GGP Pro Rata Shares

  



 


v

















 


INDEX OF DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  2006 Bank Loan

  	
   

  	
  61

  
	
  Additional Financing

  	
   

  	
  50

  
	
  Additional Sales Period

  	
   

  	
  62

  
	
  Adequate Reserves

  	
   

  	
  23

  
	
  Adjusted CDND

  	
   

  	
  40

  
	
  Affiliate

  	
   

  	
  62

  
	
  Agreement

  	
   

  	
  1

  
	
  Amended and Restated Agreement

  	
   

  	
  1

  
	
  Anticipated Debt Paydowns

  	
   

  	
  50

  
	
  Approval Motion

  	
   

  	
  28

  
	
  Approval Order

  	
   

  	
  28

  
	
  Asset Sales

  	
   

  	
  51

  
	
  Bankruptcy Cases

  	
   

  	
  1

  
	
  Bankruptcy Code

  	
   

  	
  1

  
	
  Bankruptcy Court

  	
   

  	
  1

  
	
  Blackstone

  	
   

  	
  78

  
	
  Blackstone Assigned Securities

  	
   

  	
  78

  
	
  Blackstone Assigned Shares

  	
   

  	
  78

  
	
  Blackstone Assigned Warrants

  	
   

  	
  78

  
	
  Blackstone Purchase Price

  	
   

  	
  78

  
	
  Brazilian Entities

  	
   

  	
  62

  
	
  Brookfield Agreement

  	
   

  	
  2

  
	
  Brookfield Consortium Member

  	
   

  	
  62

  
	
  Brookfield Investor

  	
   

  	
  2

  
	
  Business Day

  	
   

  	
  62

  
	
  Calculation Date

  	
   

  	
  41

  
	
  Capital Raising Activities

  	
   

  	
  62

  
	
  Cash Equivalents

  	
   

  	
  62

  
	
  Change of Control

  	
   

  	
  63

  
	
  Chapter 11

  	
   

  	
  1

  
	
  Claims

  	
   

  	
  63

  
	
  Clawback Fee

  	
   

  	
  63

  
	
  Clawback Percentage

  	
   

  	
  5

  
	
  Clawback Shares

  	
   

  	
  6

  
	
  Closing

  	
   

  	
  4

  
	
  Closing Date

  	
   

  	
  4

  
	
  Closing Date Net Debt

  	
   

  	
  63

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

  	
   

  	
  64

  
	
  Closing Restraint

  	
   

  	
  60

  
	
  CMPC

  	
   

  	
  7

  
	
  CNDAS Dispute Notice

  	
   

  	
  38

  
	
  CNDAS Disputed Items

  	
   

  	
  39

  
	
  Code

  	
   

  	
  16

  



 


vi

















 


	
  Common Stock

  	
   

  	
  1

  
	
  Company

  	
   

  	
  2

  
	
  Company Benefit Plan

  	
   

  	
  64

  
	
  Company Board

  	
   

  	
  64

  
	
  Company Disclosure Letter

  	
   

  	
  8

  
	
  Company Ground Lease Property

  	
   

  	
  20

  
	
  Company Mortgage Loan

  	
   

  	
  22

  
	
  Company Option Plans

  	
   

  	
  10

  
	
  Company Properties

  	
   

  	
  18

  
	
  Company Property

  	
   

  	
  18

  
	
  Company Property Lease

  	
   

  	
  21

  
	
  Company Rights Offering

  	
   

  	
  4

  
	
  Company SEC Reports

  	
   

  	
  13

  
	
  Competing Transaction

  	
   

  	
  64

  
	
  Conclusive Net Debt Adjustment Statement

  	
   

  	
  65

  
	
  Confirmation Order

  	
   

  	
  47

  
	
  Confirmed Debtors

  	
   

  	
  73

  
	
  Contingent and Disputed Debt Claims

  	
   

  	
  65

  
	
  Contract

  	
   

  	
  65

  
	
  Corporate Level Debt

  	
   

  	
  65

  
	
  Debt

  	
   

  	
  65

  
	
  Debt Cap

  	
   

  	
  50

  
	
  Debtors

  	
   

  	
  1

  
	
  Designation Conditions

  	
   

  	
  4

  
	
  DIP Loan

  	
   

  	
  66

  
	
  Disclosure Statement

  	
   

  	
  66

  
	
  Disclosure Statement Order

  	
   

  	
  47

  
	
  Dispute Notice

  	
   

  	
  38

  
	
  Disputed Items

  	
   

  	
  38

  
	
  Domestically Controlled REIT

  	
   

  	
  41

  
	
  Effective Date

  	
   

  	
  4

  
	
  Encumbrances

  	
   

  	
  19

  
	
  Environmental Laws

  	
   

  	
  16

  
	
  Equity Exchange

  	
   

  	
  2

  
	
  Equity Securities

  	
   

  	
  10

  
	
  ERISA

  	
   

  	
  66

  
	
  ERISA Affiliate

  	
   

  	
  17

  
	
  Excess Surplus Amount

  	
   

  	
  66

  
	
  Exchangeable Notes

  	
   

  	
  66

  
	
  Excluded Claims

  	
   

  	
  66

  
	
  Excluded Non-US Plans

  	
   

  	
  17

  
	
  Fairholme

  	
   

  	
  68

  
	
  Foreign Plan

  	
   

  	
  17

  
	
  Fully Diluted Basis

  	
   

  	
  68

  
	
  GAAP

  	
   

  	
  68

  
	
  GGO

  	
   

  	
  2

  



 


vii

















 


	
  GGO Common Share Amount

  	
   

  	
  68

  
	
  GGO Common Stock

  	
   

  	
  6

  
	
  GGO Note Amount

  	
   

  	
  68

  
	
  GGO Per Share Purchase Price

  	
   

  	
  8

  
	
  GGO Pro Rata Share

  	
   

  	
  69

  
	
  GGO Promissory Note

  	
   

  	
  68

  
	
  GGO Purchase Price

  	
   

  	
  8

  
	
  GGO Representative

  	
   

  	
  6

  
	
  GGO Setup Costs

  	
   

  	
  69

  
	
  GGO Share Distribution

  	
   

  	
  7

  
	
  GGO Shares

  	
   

  	
  8

  
	
  GGO Warrants

  	
   

  	
  29

  
	
  GGP

  	
   

  	
  1

  
	
  GGP Pro Rata Shares

  	
   

  	
  69

  
	
  Governmental Entity

  	
   

  	
  69

  
	
  Hazardous Materials

  	
   

  	
  16

  
	
  Hughes Agreement

  	
   

  	
  69

  
	
  Hughes Amount

  	
   

  	
  68

  
	
  Hughes Heirs Obligations

  	
   

  	
  69

  
	
  Identified Assets

  	
   

  	
  6

  
	
  Indebtedness

  	
   

  	
  69

  
	
  Initial Investors

  	
   

  	
  2

  
	
  Investment Agreements

  	
   

  	
  2

  
	
  Joint Venture

  	
   

  	
  70

  
	
  Knowledge

  	
   

  	
  70

  
	
  Law

  	
   

  	
  70

  
	
  Liquidity Equity Issuances

  	
   

  	
  70

  
	
  Liquidity Target

  	
   

  	
  49

  
	
  Material Adverse Effect

  	
   

  	
  70

  
	
  Material Contract

  	
   

  	
  71

  
	
  Material Lease

  	
   

  	
  21

  
	
  Measurement Date

  	
   

  	
  10

  
	
  Most Recent Statement

  	
   

  	
  18

  
	
  MPC Assets

  	
   

  	
  71

  
	
  MPC Taxes

  	
   

  	
  71

  
	
  Net Debt Excess Amount

  	
   

  	
  72

  
	
  Net Debt Surplus Amount

  	
   

  	
  72

  
	
  New Common Stock

  	
   

  	
  1

  
	
  New Debt

  	
   

  	
  50

  
	
  New DIP Agreement

  	
   

  	
  47

  
	
  New Warrants

  	
   

  	
  29

  
	
  Non-Control Agreement

  	
   

  	
  72

  
	
  Non-Controlling Properties

  	
   

  	
  72

  
	
  NYSE

  	
   

  	
  29

  
	
  Offering Premium

  	
   

  	
  72

  
	
  Operating Partnership

  	
   

  	
  72

  



 


viii

















 


	
  Original Agreement

  	
   

  	
  1

  
	
  PBGC

  	
   

  	
  17

  
	
  Per Share Purchase Price

  	
   

  	
  3

  
	
  Permitted Claims

  	
   

  	
  73

  
	
  Permitted Claims Amount

  	
   

  	
  73

  
	
  Permitted Replacement Shares

  	
   

  	
  73

  
	
  Permitted Title Exceptions

  	
   

  	
  19

  
	
  Pershing Agreement

  	
   

  	
  2

  
	
  Pershing Purchasers

  	
   

  	
  2

  
	
  Person

  	
   

  	
  73

  
	
  Petition Date

  	
   

  	
  1

  
	
  Plan

  	
   

  	
  1

  
	
  Plan Debtors

  	
   

  	
  73

  
	
  Plan Summary Term Sheet

  	
   

  	
  1

  
	
  PMA Claims

  	
   

  	
  73

  
	
  Preliminary Closing Date Net Debt Review Deadline

  	
   

  	
  74

  
	
  Preliminary Closing Date Net Debt Review Period

  	
   

  	
  74

  
	
  Preliminary Closing Date Net Debt Schedule

  	
   

  	
  38

  
	
  Proportionally Consolidated Debt

  	
   

  	
  74

  
	
  Proportionally Consolidated Unrestricted Cash

  	
   

  	
  74

  
	
  Proposed Approval Order

  	
   

  	
  28

  
	
  Proposed Securities

  	
   

  	
  31

  
	
  Purchase Price

  	
   

  	
  3

  
	
  Purchaser

  	
   

  	
  1

  
	
  Purchaser Group

  	
   

  	
  74

  
	
  Refinance Cap

  	
   

  	
  53

  
	
  Reinstated Amounts

  	
   

  	
  50

  
	
  Reinstatement Adjustment Amount

  	
   

  	
  74

  
	
  REIT

  	
   

  	
  23

  
	
  REIT Subsidiary

  	
   

  	
  23

  
	
  Reorganized Company

  	
   

  	
  1

  
	
  Reorganized Company Organizational Documents

  	
   

  	
  36

  
	
  Repurchase Notice

  	
   

  	
  5

  
	
  Reserve

  	
   

  	
  73

  
	
  Reserve Surplus Amount

  	
   

  	
  74

  
	
  Reserved Shares

  	
   

  	
  5

  
	
  Resolution Period

  	
   

  	
  38

  
	
  Rights Agreement

  	
   

  	
  75

  
	
  Rights Offering Election

  	
   

  	
  4

  
	
  Rouse Bonds

  	
   

  	
  75

  
	
  Rule 144

  	
   

  	
  44

  
	
  Sales Cap

  	
   

  	
  52

  
	
  SEC

  	
   

  	
  13

  
	
  Securities Act

  	
   

  	
  13

  
	
  Share Cap Number

  	
   

  	
  51

  
	
  Share Equivalent

  	
   

  	
  75

  



 


ix

















 


	
  Shares

  	
   

  	
  3

  
	
  Significant Subsidiaries

  	
   

  	
  75

  
	
  SOX

  	
   

  	
  41

  
	
  Specified Debt

  	
   

  	
  75

  
	
  Subscription Right

  	
   

  	
  31

  
	
  Subsidiary

  	
   

  	
  75

  
	
  Synthetic Lease Obligation

  	
   

  	
  70

  
	
  Target Net Debt

  	
   

  	
  75

  
	
  Tax Matters Agreement

  	
   

  	
  75

  
	
  Tax Protection Agreements

  	
   

  	
  76

  
	
  Tax Return

  	
   

  	
  23

  
	
  Taxes

  	
   

  	
  23

  
	
  Termination Date

  	
   

  	
  76

  
	
  Transactions

  	
   

  	
  76

  
	
  Transfer

  	
   

  	
  44

  
	
  TRUPS

  	
   

  	
  76

  
	
  U.S. Persons

  	
   

  	
  41

  
	
  Unrestricted Cash

  	
   

  	
  76

  
	
  Unrestricted Date

  	
   

  	
  42

  
	
  Unsecured Indebtedness

  	
   

  	
  76

  
	
  UPREIT Units

  	
   

  	
  76

  
	
  Warrant Agreement

  	
   

  	
  29

  
	
  Warrants

  	
   

  	
  29

  



 


x

















 


AMENDED AND RESTATED STOCK
PURCHASE AGREEMENT, effective as
of March 31, 2010 (this “Agreement”), by and between General Growth
Properties, Inc., a Delaware corporation (“GGP”), and The Fairholme Fund, a series of Fairholme
Funds, Inc., a Maryland corporation (“The Fairholme Fund”) and
Fairholme Focused Income Fund, a series of Fairholme Funds, Inc., a
Maryland corporation, (each, together with its permitted nominees and assigns,
a “Purchaser”).


 


On
March 31, 2010, GGP and the Purchasers entered into the Stock Purchase
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 the
Purchasers entered into the Amended and Restated Stock Purchase Agreement,
effective as of March 31, 2010 (as subsequently amended on September 17,
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,  each  Purchaser, separately and not jointly, 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,  each
Purchaser, separately and not jointly, 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
each 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 each Purchaser, separately and not jointly, commit to
purchase the Shares and the GGO Shares at a fixed price for the term hereof.


 


WHEREAS, each Purchaser, separately and not jointly, 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 each Purchaser,
the “Brookfield Agreement”) with REP Investments LLC (the “Brookfield
Investor”) pursuant to which the Brookfield Investor has agreed to make (i) an
investment of up to $2,500,000,000 in the Reorganized Company in the form of
the purchase of shares of New Common Stock and (ii) an investment of
$125,000,000 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 each Purchaser,
the “Pershing Agreement”  and,
together with this Agreement and the Brookfield Agreement, the “Investment
Agreements”) with Pershing Square, L.P., Pershing Square II, L.P., Pershing
Square International, Ltd. and Pershing Square International V, Ltd.
(the “Pershing Purchasers” and, together with each Purchaser and the
Brookfield Investor, the “Initial Investors”) pursuant to which the
Pershing Purchasers have 


 


2

















 


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 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), each Purchaser shall purchase from the Company, and the Company shall
sell to such Purchaser, a number of shares of New Common Stock (the “Shares”)
equal to its GGP Pro Rata Share of the Total Purchase Amount (as defined below)
for a price per share equal to $10.00 (the “Per Share Purchase Price”
and, in the aggregate, the “Purchase Price”); provided, that no
Purchaser shall be obligated to purchase a number of Shares less than its GGP
Pro Rata Share of 190,000,000, as determined pursuant to Section 1.4.  At the Closing, the Purchasers shall cause
the Purchase Price to be paid (i) first, to the extent that the Purchasers
elect 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 the Purchasers 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, the Purchasers may elect which claims to apply in satisfaction of the
Purchasers’ 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 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)                                 The “Total
Purchase Amount” will be 380,000,000, subject to reduction pursuant to Section 1.4.


 


(c)                                  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.


 


(d)                                 Each Purchaser,
in its sole discretion, may assign its rights to receive Shares hereunder or
designate that some or all of the Shares be issued in the name of, and
delivered to, one or more of the other members of its Purchaser Group or any
third party to whom the shares 


 


3

















 


could be transferred immediately after Closing in
accordance with Section 6.4, 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 to such Purchaser set forth in Section 6.4 and the
applicable Non-Control Agreement, if any, including the delivery of the letter
certifying compliance with the representations and covenants set forth on Exhibit D
to the extent applicable to such assignee or designee and (iii) such
initial Purchaser not being relieved of any of its obligations under this
Agreement ((i), (ii) and (iii) collectively, the “Designation
Conditions”).  Notwithstanding
anything to the contrary in this Agreement, no Purchaser may assign its rights
to receive or designate Shares to any Person (other than members of its
Purchaser Group) if such assignment or designation would cause a failure of the
closing condition in Section 7.1(u) of the Brookfield Agreement.


 


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 each 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 each Purchaser hereby agrees that in no event
shall the Closing occur unless all of the Shares and the GGO Shares are sold to
each applicable Purchaser (or to such other Persons as each such applicable
Purchaser may designate in accordance with and subject to the Designation
Conditions so long as such designation would not cause a failure of the closing
condition in Section 7.1(u) of the Brookfield Agreement) 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 each Purchaser in
accordance with the terms hereof (the “Rights Offering Election”),
irrevocably elect to convert the obligation of such Purchaser to purchase the
Shares as contemplated by Section 1.1 hereof into an obligation of
such 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) each
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 such
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 such Purchaser shall be equal to the Per Share Purchase Price and
such 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 


 


4

















 


Effective Date, and (iv) the Company and each
Purchaser shall cooperate in good faith to develop and agree upon documentation
that is reasonably acceptable to both the Company and each Purchaser governing
the further terms and conditions of the Company Rights Offering.


 


SECTION 1.4  Company Election to Replace Certain
Shares; Company Election to Reserve and Repurchase Certain Shares.


 


(a)                                  In the event
that the Company has sold, or has binding commitments to sell on or prior to
the Effective Date, Permitted Replacement Shares, the Company may elect by
written notice to each Purchaser to reduce the Total Purchase Amount by all or
any portion of the number of such Permitted Replacement Shares as the Company
may determine in its discretion; provided, that the Total Purchase Amount shall
not be less than 190,000,000.  No
election by the Company under this Section 1.4(a) shall be
effective unless received by each Purchaser on or prior to the date that is 15
days before the commencement of the hearing to consider confirmation of the
Plan.  Any election by the Company under
this Section 1.4(a) shall be binding and irrevocable.


 


(b)                                 If the Plan as
presented for confirmation provides for the commencement on or within 45 days
after the Effective Date of a broadly distributed public offering of New Common Stock, the Company may elect, by written notice to each
Purchaser on or prior to October 11, 2010, to specify a number of Shares
to be  purchased by the Purchasers
at Closing as Shares to be subject to repurchase after Closing pursuant to this
Section 1.4(b) (the “Reserved Shares”); provided, that
the excess of (i) its GGP Pro Rata Share of the Total Purchase Amount
minus (ii) its Reserved Shares shall not be less than its GGP Pro Rata
Share of 190,000,000.  If the Company elects to designate any Reserved Shares, the Company
shall pay to each Purchaser in cash on the Effective Date an amount equal to
$0.25 per Reserved Share.  Upon payment of such amount, the Company
shall thereafter have the right to elect by written notice to each Purchaser (a
“Repurchase Notice”) on or prior to the 40th day after the Effective
Date (or, if not a Business Day, the next Business Day) to repurchase from each
Purchaser a number of Shares equal to the lesser of such Purchaser’s Clawback Percentage of (x) the aggregate number of Permitted
Replacement Shares (other than any Permitted Replacement Shares applied to
reduce the Total Purchase Amount pursuant to Section 1.4(a)) sold by the Company prior to the 45th day after the Effective Date and (y) the
sum of the initial number of Reserved Shares under this Agreement and the initial
number of Repurchase Shares (as defined in the Pershing Agreement) under the Pershing
Agreement.  The purchase price for any Reserved Shares shall be $10.00 per Share, payable in cash
in immediately available funds against delivery of the Reserved Shares on a settlement date determined by the
Company and each Purchaser and not later than the date that is 45 days after
the Effective Date. Any Repurchase Notice under this Section 1.4(b) shall,
when taken together with this Agreement, constitute a binding offer and
acceptance and be irrevocable.


 


For
the purposes of this Section 1.4, “Clawback Percentage”
means, for each Purchaser under this Agreement and the Pershing Agreement, the
quotient (expressed as a percentage) of (a) the number of Clawback Shares
such Purchaser is purchasing at Closing divided by (b) all the Clawback
Shares purchased at Closing under this Agreement and the Pershing
Agreement.  The aggregate Clawback
Percentages shall at all times equal 100%.


 


5

















 


For
the purposes of this Section 1.4, “Clawback Shares” means
all Reserved Shares under this Agreement and all Repurchase Shares (but not Put
Shares) under the Pershing Agreement.


 


SECTION 1.5  Pro Rata Reductions with Pershing
Agreement.  No election by the
Company pursuant to Section 1.4(a) or
specification of Reserved Shares pursuant to Section 1.4(b) shall be made
without the consent of Purchasers unless the Company is making a similar
election under the Pershing Agreement, such that each of the aggregate number
of Shares required to be purchased at Closing is allocated as among each
Purchaser and among each of the Pershing Purchasers under the Pershing
Agreement in accordance with the applicable GGP Pro Rata Share; provided, however that solely for the purposes of this Section 1.5,
the number of Put Shares (as defined in the Pershing Agreement) shall be
included in the above calculation of the number of Shares required to be
purchased at Closing.


 


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:


 


(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
the other Initial Investors 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 


 


6

















 


its Subsidiaries (as reasonably determined by the
Company in consultation with the GGO Representative), contribute other assets,
with the separate consent of each Purchaser (which such 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 each 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 other Initial
Investors pursuant to Section 2.2 of their respective Investment
Agreements, and (z) upon exercise of the GGO Warrants and the warrants
issued to the other Initial Investors pursuant to their respective Investment
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 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 each 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, each Purchaser shall purchase from GGO, and GGO shall sell to such



 


7

















 


Purchaser, a number of shares of GGO Common Stock
(the “GGO Shares”) equal to its GGO Pro Rata Share of 2,625,000 shares
of GGO Common Stock, 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)                                  Each Purchaser,
in its sole discretion, may designate that some or all of the GGO Shares be
issued in the name of, and delivered to, the other members of its Purchaser
Group in accordance with and subject to the Designation Conditions.


 


ARTICLE III


 


REPRESENTATIONS AND
WARRANTIES OF THE COMPANY


 


The
Company represents and warrants to each 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 Note” or any similar
sections) or (ii) as set forth in the disclosure schedule delivered by the
Company to each 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.


 


8






 












 


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 and (ii) the
provisions of the Approval Order).  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
each Purchaser contained in Exhibit D) and (ii) perform its
obligations pursuant to the provisions of the Approval Order 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 each Purchaser and the
other members of the Purchaser Group in connection with each Purchaser’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 such Purchaser or other members of the Purchaser Group
without any requirement for stockholder approval, in each case, during the five
(5) year period following the Closing Date.


 


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 and (ii) the provisions of the Approval Order).


 


(b)                                 Subject to the
entry of the Approval Order, the provisions of this Agreement relating to (i) the
issuance of the Warrants and (ii) the provisions of the Approval Order
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 


 


9

















 


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 any 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 any 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 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 any 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 any 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.


 


10

















 


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 such 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 applicable Non-Control Agreement, if any, 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 applicable Non-Control Agreement, if
any, 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 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 


 


11

















 


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).


 


(b)                                 Subject to the
entry of the Approval Order, (i) the issuance of the Warrants (assuming
the accuracy of the representations of each Purchaser contained in Exhibit D)
and (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 (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
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 


 


12

















 


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 and (ii) the provisions 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.


 


(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 and (2) the performance of and
compliance by the Company with all of the provisions of the Approval Order
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.


 


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.


 


13

















 


(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.  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 


 


14

















 


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 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 


 


15

















 


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 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 


 


16

















 


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 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.


 


17






 












 


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 each
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 any
Purchaser for a brokerage commission, finder’s fee, investment banking fee or
like payment in connection with the transactions contemplated by this
Agreement.


 


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 


 


18

















 


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 each 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 each 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 each 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’, 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 


 


19

















 


Company has otherwise represented and warranted to
each 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 each 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 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.


 


20

















 


(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” 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.


 


21

















 


(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.


 


(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 


 


22

















 


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 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.


 


23

















 


(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 each Purchaser complete and accurate copies of all material
Tax Returns requested by any 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 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, 


 


24

















 


individually or in the aggregate, a Material Adverse
Effect.  The Company has made available
to each 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 any Purchaser and any other member of the Purchaser
Group 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 Common Stock that any Purchaser or
any member of the Purchaser Group may be deemed to own by no actions of its own
and the acquisition of beneficial ownership of up to an additional amount
totaling 1.786% of the issued and outstanding shares of Common Stock, in the
aggregate, by any Purchaser or any other member of the Purchaser Group; provided,
however, that such exception to the ownership limitations are only
effective as to any Purchaser or a member of the Purchaser Group so long as (i) the
Company has received executed copies of the representation certificate
contained in Exhibit D from such Purchaser or any such member of
the Purchaser Group, it being understood that a member of the Purchaser Group
(not otherwise a Purchaser hereunder) shall be required to provide such
representations at such times and only at such times as such member of the
Purchaser Group “beneficially owns” or “constructively owns” (as
such terms are defined in the certificate of incorporation of the Company)
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 member of the Purchaser Group in a tenant of the
Company would be treated as constructively owned by the Company 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 each 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,” “control share,” “fair price,” “takeover”
or “interested stockholder” law applicable to transactions between each
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 each Purchaser or any other members of 


 


25

















 


the Purchaser Group or their respective
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


 


Each
Purchaser severally, and not jointly and severally, represents and warrants to
the Company with respect to itself, and not with respect to any other
Purchaser, as set forth below:


 


SECTION 4.1  Organization.  Purchaser is duly established as a series of
a corporation that is duly organized and is validly existing and in good
standing under the Laws of its jurisdiction of organization, with the requisite
corporate power and authority to undertake and effectuate the transactions contemplated
by this Agreement.  Purchaser is a series
of a corporation that 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),
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 


 


26

















 


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.


 


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


 


27






 












 


only if such Person “beneficially owns” or “constructively
owns” (as such terms are defined in the certificate of incorporation of the
Company) 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 the Company.


 


SECTION 4.13  Financial Capability.  Such Purchaser has sufficient binding capital
commitments or available funds to satisfy its obligations under this Agreement,
including without limitation the payment of the applicable Purchase Price and
the GGO Purchase Price.


 


SECTION 4.14  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 4.15  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 each 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 each Purchaser
and the warrants contemplated by each other Investment Agreement to be issued
to the applicable Initial Investor, 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 each 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 


 


28

















 


or reargument shall be filed with respect to such
order), the Company shall diligently defend 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 each 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 each 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 each
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 each Purchaser) (the “Warrant Agreement”)
pursuant to which there will be issued to each Purchaser its GGP Pro Rata Share
of 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 each Purchaser
pro rata in accordance with the number of shares of New Common Stock or GGO
Common Stock, as the case may be, purchased, an aggregate of (i) 42,857,143
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 $10.50 per share subject to adjustment as provided in the
underlying warrant agreement and (ii) 2,000,000 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.


 


SECTION 5.3  [Intentionally Omitted.]


 


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.


 


29

















 


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.  The parties intend that the New Warrants, GGO
Warrants, New Common Shares and GGO Shares will be offered and sold under the
Plan, to the fullest extent permitted by law, in exchange for a claim against,
an interest in, or a claim for an administrative expense in the Bankruptcy
Case, or principally in such exchange and partly for other cash or property,
for purposes of Section 1145, and the parties shall take all reasonable
actions necessary consistent with applicable law to cause such securities to be
so offered and sold, including without limitation, reflecting the foregoing in
the initial filing of the Plan with the Bankruptcy Court.


 


SECTION 5.6  Access to Information.  Subject to applicable Law and the Company’s
receipt of customary assurances of confidentiality by each Purchaser, upon
reasonable notice, the Company shall afford each 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 each Purchaser such information
concerning its business, properties and personnel as may reasonably be requested
by such Purchaser, including copies of all monthly financial information
provided to its lenders under its existing debtor in possession 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.


 


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 each 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.  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 


 


30

















 


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 them 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 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”), each
Purchaser 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
aggregate 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 each Purchaser 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 such Purchaser 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 each Purchaser
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 the applicable Purchaser regarding its status as the type of
offeree to whom a private sale 


 


31

















 


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 each 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 10 Business Days
after the commencement of marketing with respect to such offering or after the
Company takes substantial steps to pursue any other offering.  Each Purchaser shall have three (3) 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 such Purchaser 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 such Purchaser may
specify and, with respect to other offerings, such notice shall constitute a
binding commitment of such Purchaser to purchase the amount of Proposed
Securities so specified at the price and other terms set forth in the Company’s
notice to such Purchaser.  The failure of
such Purchaser to so respond within such three (3) 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, each Purchaser shall further enter into an
agreement (in form and substance customary for transactions of this type) to
purchase the Proposed Securities to be acquired by it 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 of such Purchaser to
enter into such an agreement at or prior to such time shall constitute a waiver
of the right to purchase the applicable portion of the Proposed Securities in
respect of such offering.


 


(iii)          Purchase
Mechanism.  If a
Purchaser 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).  The Company
and each Purchaser shall use its reasonable best efforts to secure any
regulatory or stockholder approvals 


 


32

















 


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) a Purchaser fails to
exercise its Subscription Right provided in this Section 5.9 within
said three Business Day period, or (B) if so exercised, a Purchaser 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 such Purchaser 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 such 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 the applicable 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 each Purchaser shall cooperate in good faith to facilitate the exercise of
such Purchaser’s Subscription Right hereunder, including using reasonable
efforts to secure any required approvals or consents.


 


(vii)         [Intentionally
Omitted.]


 


(viii)        General.  Notwithstanding anything herein to the
contrary, (A) if (1) a Purchaser 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 such Purchaser is entitled to Subscription Rights
would materially impair the financing objective of such offering, the Company
may proceed with such offering without the participation of such Purchaser in
such offering, in which event the Company and such Purchaser shall promptly
thereafter agree on a process otherwise consistent with this Section 5.9
as would allow such Purchaser to 


 


33

















 


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
such Purchaser to maintain its aggregate 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 a
Purchaser is entitled to Subscription Rights, the Company shall be permitted by
notice to such Purchaser 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 such Purchaser 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 such 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 such
Purchaser to maintain its aggregate 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 a 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 such
Purchaser, insofar 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 such Purchaser was able to effectively exercise
its Subscription Rights hereunder, including, without limitation, at the option
of such Purchaser, issuing to such Purchaser another class of securities of the
Company having terms to be agreed by the Company and such 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 such Purchaser to maintain its proportionate
New Common Stock-equivalent interest in the Company on a Fully Diluted Basis.


 


(ix)           Termination.  This Section 5.9 shall terminate
at such time as the members of the Purchaser Group collectively beneficially
own less than 5% of the outstanding shares of New Common Stock on a Fully
Diluted Basis.


 


34

















 


(b)                                 GGO
Subscription Rights.  The Plan
shall provide that in connection with the consummation of the Plan, GGO shall
enter into an agreement with each 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  [Intentionally Omitted.]


 


SECTION 5.11  Notification of Certain Matters.


 


(a)                                  The Company
shall (i) give prompt written notice to each 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 each Purchaser to the electronic
notification system such that the designated individuals will receive
electronic notice of the entry of any Bankruptcy Court Order.


 


(b)                                 To the extent
permitted by applicable Law, (i) the Company shall give prompt notice to
each 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
each Purchaser, and each 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 such Purchaser, as applicable, being untrue or
any covenant or agreement of the Company or such 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 


 


35

















 


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 any
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
members of the Purchaser Group 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 a Purchaser
or a member of its Purchaser Group may be deemed to own by no actions of its
own and (4) up to an additional amount totaling 1.786% of the issued and
outstanding shares of Common Stock in the aggregate by the Purchaser Group, (ii) no
Purchaser, or any member of the Purchaser Group, 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 members of the Purchaser Group of the Warrants, the underlying securities
thereof and the acquisition of beneficial ownership of up to an additional
amount totaling 1.786% of the issued and outstanding shares of Common Stock in
the aggregate by the Purchaser Group.


 


(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 each Purchaser, provided, that in the event that the
Company and such 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 member of the Purchaser Group if such 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 


 


36

















 


Company’s Rights Agreement shall be inapplicable to
this Agreement and the transactions contemplated hereby, (ii) no
Purchaser, nor any other member of its Purchaser Group, 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 any Purchaser or other member of the Purchaser
Group after the date hereof as otherwise permitted by this Agreement, the New
Warrants or as otherwise contemplated by the applicable Non-Control Agreement,
if any.


 


(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) no
Purchaser, nor any other member of its Purchaser Group, 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 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 any Purchaser or other member of the Purchaser Group 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 any 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 such
Purchaser’s Subscription Rights for the maximum period permitted by the
NYSE.  The Plan shall provide that GGO
shall, for the benefit of each 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 any 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 such Purchaser’s subscription rights for
the maximum period permitted by the rules of such U.S. national securities
exchange.


 


37






 












 


SECTION 5.16  Closing Date Net Debt.


 


(a)                                  The Company
shall deliver to each 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)                                 Each 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 such 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,
any Purchaser may deliver to the Company a notice (the “Dispute Notice”)
listing those items on the Preliminary Closing Date Net Debt Schedule to which
such Purchaser takes exception, which Dispute Notice shall (i) specifically
identify such items, and provide a reasonably detailed explanation of the basis
upon which such Purchaser has delivered such list, (ii) set forth the
amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted
Claims Amounts that such Purchaser has calculated based on the information
contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically
identify such Purchaser’s proposed adjustment(s).  If a Purchaser timely provides the Company
with a Dispute Notice, then such 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 a 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 such
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 such Purchaser and the Company.  If a Purchaser does not timely deliver a
Dispute Notice, then such 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 each Purchaser a draft of the Conclusive Net Debt Adjustment
Statement no later than 15 calendar days prior to the Effective Date.  Each 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, any Purchaser may deliver to the
Company a notice (the “CNDAS Dispute Notice”) listing those items to
which such Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically
identify such items, and provide a reasonably detailed explanation of the basis
upon which such Purchaser has delivered such list, (ii) set forth the
alternative amounts that such Purchaser has calculated based on the information
contained in the Conclusive Net Debt Adjustment Statement, and (iii) 


 


38

















 


specifically identify such Purchaser’s proposed
adjustment(s).  If a Purchaser timely
provides the Company with a CNDAS Dispute Notice, then such Purchaser and the
Company shall attempt to resolve the items specified in the CNDAS Dispute
Notice (the “CNDAS Disputed Items”) consensually.  If such 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.  The Purchasers 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 a 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 the
Purchasers and the Company.  If a
Purchaser does not timely deliver a CNDAS Dispute Notice, then such 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, the Purchasers 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, damages, liabilities and expenses attributable to MPC
Taxes in accordance with the terms and conditions of
the Tax Matters Agreement.


 


39

















 


(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 5.16(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.


 


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 


 


40

















 


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 5.17  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 each Purchaser and each 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 such Purchaser.  Each such statement shall be based on the
direct ownership in such Purchaser, except to the extent that such 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 a 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 5.17.


 


(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.


 


(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 


 


41

















 


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 5.17 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 a Purchaser upon the request of such
Purchaser.  In addition, if reasonably
requested by a Purchaser, the Reorganized Company will, at such Purchaser’s
expense, make reasonable efforts to provide additional information to and
otherwise cooperate with such Purchaser, to enable such 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 such
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, each Purchaser agrees to provide the Debtors with such information
as the Debtors reasonably request regarding such 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.  Each 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 such 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 the Approval Order
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 Subsidiary of the Company enters into a Competing Transaction (such
date, the “Unrestricted Date”), each Purchaser agrees (unless otherwise
consented to by the Company) (provided that (x) 


 


42

















 


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 each 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 any Purchaser may have to terminate this Agreement pursuant to Section 11.1(b) (including
Section 11.1(b)(ix)) hereof.


 


SECTION 6.4  Transfer Restrictions.  Each 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.  Each 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 covering the resale of the Shares is effective under the
Securities Act, or (B) following any sale 


 


43

















 


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 the applicable
Purchaser that the remaining Shares held by such 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 the
applicable Purchaser to the Company of a legended certificate representing such
Shares, deliver or cause to be delivered to such 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 such 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 each 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.


 


The
Fairholme Fund further covenants and agrees not to sell, transfer or dispose of
(each, a “Transfer”) the Warrants or the shares of Common Stock issuable
upon exercise of the Warrants (other than to a member of the Purchaser Group)
prior to the Unrestricted Date or any Shares, New Common Stock or New Warrants
in violation of the Non-Control Agreement.


 


For
the avoidance of doubt, each Purchaser’s Subscription Rights pursuant to Section 5.9
may not be Transferred to a Person that is not a member of the Purchaser Group.


 


The
Plan shall provide that in addition to the covenants provided in the
Non-Control Agreement, at the time of an underwritten offering of equity or
convertible securities by the Company on or prior to the 30th day after the
Effective Date, to the extent reasonably requested in connection with such
offering by UBS or any other managing underwriter selected by the Company, each
Purchaser and the other members of the Purchaser Group will covenant and agree
that it does not currently intend to, and will not, sell, transfer or dispose
of (each, a “Transfer”) any Shares for a period of time not to exceed
120 days from the date of completion of the offering without the consent of the
representatives of such underwriter; provided, however, that a Purchaser
or member of its Purchaser Group may Transfer its Shares in such amounts, and
at such times, as Fairholme, as such Purchaser’s or Purchaser Group members’
manager, determines after the Closing Date to be in such Purchaser’s or
Purchaser Group members’ best interests in light of its then current
circumstances and the laws and regulations 


 


44

















 


applicable
to it as a management investment company registered under the Investment
Company Act of 1940, as amended, with a policy of qualifying as a “regulated
investment company” as defined in Subchapter M of the Internal Revenue Code
of 1986, as amended.


 


SECTION 6.5  [Intentionally Omitted.]


 


SECTION 6.6  REIT Representations and Covenants.  At such times as shall be reasonably
requested by the Company, for so long as any Purchaser (or, to the extent
applicable, its Affiliates, members or Affiliates of members) “beneficially
owns” or “constructively owns” (as such terms are defined in the
certificate of incorporation of the Company) 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, such 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 waive Purchaser from the
ownership limit set forth in the certificate of incorporation of the Company
and ensure that the Company can appropriately monitor any “related party
rent” issues raised by the Warrants and the purchase of the Shares by such
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” or “constructively
owns” (as such terms are defined in the certificate of incorporation of the
Company) 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 the Company.


 


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


 


SECTION 6.8  [Intentionally Omitted.]


 


SECTION 6.9  Additional Backstop.


 


(a)                                  If the Company
requests 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 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, 


 


45

















 


such Initial Investor shall be released from its
obligations under its applicable Investment Agreement.


 


(b)                                 For the
purposes of Section 6.9(a), 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 its Investment Agreement as of the
date hereof, but excluding any shares of New Common Stock the Brookfield
Investor or the Pershing Purchasers have committed to purchase pursuant to Section 6.9
of the other Investment Agreements.


 


ARTICLE VII


 


CONDITIONS TO THE
OBLIGATIONS OF PURCHASER


 


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


 


46

















 


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) the Company shall
have complied therewith in all respects. 
The Company shall have provided to each 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 each 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 each Purchaser, shall have been confirmed
by the Bankruptcy Court by order in form and substance satisfactory to each
Purchaser (the “Confirmation Order”), which Confirmation Order shall be
in full 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. 
Notwithstanding anything to the contrary in the Plan Term Sheet, the
Plan shall have allowed the Specified Debt in an amount no less than par plus
unpaid pre-petition and post-petition interest accrued at the stated
non-default rate (or contract rate in the case of Class M).


 


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


 


47






 












 


(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 each Purchaser with
reasonable access to all relevant information and consulted and cooperated in
good faith with each 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 each
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 respective Initial Investors pursuant to the
respective Investment Agreements, (B) 2,000,000 shares of GGO Common Stock
issuable upon exercise of the GGO Warrants, (C) 6,000,000 shares of GGO Common
Stock issuable upon the exercise of warrants that may be issued to the other
Initial Investors pursuant to the other Investment Agreements).


 


(j)            Valid Issuance.  The Shares, Warrants, New Warrants and GGO
Warrants and the GGO Shares shall be validly issued to each 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 each 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 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.  The Company shall have filed with the SEC and
the SEC shall have declared effective, as of Closing, to the extent permitted
by applicable SEC rules, a shelf registration statement on Form S-1 or Form
S-11, as applicable, covering the resale by each Purchaser and member of the
Purchaser Group of the Shares, any securities issued pursuant to Section
6.9(a) and the New Common Stock issuable upon exercise of the New Warrants,
containing a plan of distribution reasonably satisfactory to each
Purchaser.  In addition, each of the
Company and GGO shall have entered into registration rights agreements with
each 


 


48

















 


Purchaser with respect to all registrable securities
issued to or held by members of the Purchaser Group from time to time in a
manner that permits the registered offering of securities pursuant to such
methods of sale as a 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, at least three underwritten
offerings during the term of the registration rights agreement, but not more
than one underwritten offering in any 12-month period 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 a
Purchaser, consistent with those provided in the Warrant Agreement (it being
understood that the registration rights agreement will include procedures
reasonably acceptable to such 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 other Initial Investors
exceed 120 days in any 365-day period; (vii) to the extent that the Purchasers
and the members of the Purchaser Group are Affiliates of the Company or GGO, as
applicable, at the time of an underwritten public offering by the Company or
GGO, as applicable, each Purchaser and the other members of the Purchaser Group
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 each 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 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 each Purchaser and the Company) plus the excess,
if any, of (A) the aggregate principal amount of New Debt and the 


 


49

















 


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)           [Intentionally Omitted.]


 


(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 “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”).


 


50

















 


(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 42,857,143 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 Brookfield Consortium Members
pursuant to the Brookfield Agreement and to the Pershing Purchasers pursuant to
the Pershing Agreement, 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 of the other Investment
Agreements, the difference between (i) the number of shares of New Common Stock
issued to existing holders of Common Stock, the Brookfield Investor and the
Pershing Purchasers, in each case, pursuant to Section 6.9 of the other
Investment Agreements 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 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 each
Purchaser (which consent such 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 


 


51

















 


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;]


 


(vi)          (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, the Brookfield
Investor and the Pershing Purchasers, in each case, pursuant to Section 6.9 of
the other Investment Agreements);


 


(vii)         none of the Company
Properties or Identified Assets shall have been mortgaged, or pledged, nor
shall the owner or lessee thereof have granted 


 


52

















 


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


 


(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.  Each 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 Agreements.  The Company shall have entered into the
Non-Control Agreement with The Fairholme Fund. 
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.


 


53

















 


(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, the Brookfield
Investor and the Pershing Purchasers, in each case, pursuant to Section 6.9 of
the other Investment Agreements), 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 Purchasers or the Pershing Purchasers
in accordance with Section 1.4 of this 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) an Initial Investor and their respective Affiliates pursuant to the
Investment Agreements 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 the Purchasers, members of the Fairholme Purchaser Group,
the members of the Pershing Purchaser Group, the Brookfield Consortium Members
or the Brookfield Investor) 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) each Purchaser shall have been
offered the right to purchase up to its GGP Pro Rata Share of 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 clause (3) shall not be applicable to the issuance of shares
or warrants contemplated by the other Investment 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.


 


54

















 


(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.


 


(x)            Other Conditions.  With respect to each other Initial Investor,
either (A) its Investment Agreement shall be in full force and effect without
amendments or modifications (other than those that are materially no less
favorable to the Company than those provided in such Investment Agreement as in
effect on the date hereof), the conditions to the consummation of the
transactions under such Investment Agreement as in effect on the date hereof to
be performed on the Closing Date shall have been satisfied or waived with the
prior written consent of each Purchaser, acting separately and not jointly, and
such Initial Investor shall have subscribed and paid for such shares of New
Common Stock that such Initial Investor is obligated to purchase thereunder,
(B) the funding to be provided by such Initial Investor under its Investment
Agreement shall have been provided by one or more other investors or purchasers
acceptable to each Purchaser on terms and conditions that such Purchaser has
agreed are materially no less favorable to the Company than the terms and
conditions of the applicable Investment Agreement as in effect on the date
hereof or (C) in the case of an Initial Investor (other than a Brookfield
Consortium Member), such Initial Investor has breached its obligation to fund
at Closing when required to do so in accordance with the terms of its
Investment Agreement (it being understood that the foregoing shall not limit
the Company’s right to reduce the Total Purchase Amount under Section 1.4
hereof).


 


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 each 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 


 


55

















 


warranties of each 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 (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 such Purchaser to consummate the transactions contemplated by
this Agreement.  Each Purchaser shall
have complied in all material respects with all of its obligations under this
Agreement.  Each Purchaser shall have
provided to the Company a certificate delivered by an executive officer of the
managing member of such Purchaser, acting in his or her official capacity on
behalf of such 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 each of the GGO Share Distribution and the prerequisite
internal spin-offs each as a “tax free spin-off” under the Code.


 


56
















 


(j)            Funding.  The applicable Purchaser shall have paid to
the Company and GGO, as applicable, all amounts payable by such 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.


 


(k)           REIT Matters.  The representations and covenants set forth
on Exhibit D in respect of the applicable 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 such Purchaser’s
Affiliates, members or Affiliates of members shall be required to provide such
representations and covenants only if such Person “beneficially owns” or
“constructively owns” (as such terms are defined in the certificate of
incorporation of the Company) 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 the Company.


 


(l)            Non-Control Agreements.  The Fairholme Fund shall have entered into
the Non-Control Agreement with the Company. 
The Non-Control Agreement shall be in full force and effect and The
Fairholme Fund 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


 


[INTENTIONALLY OMITTED]


 


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.


 


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 (2) Business
Days following the date of this Agreement, (ii) the Approval Order, in
form and substance satisfactory to each Purchaser, 


 


57

















 


approving, among other things, the issuance of the
Warrants and the warrants contemplated by each other Investment Agreement, is
not entered by the Bankruptcy Court on or prior to the date that is 43 days
after the date of this Agreement, (iii) if the Debtors withdraw the
Approval Motion, or (iv) the conditions to the obligations of any other
Initial Investor pursuant to the other Investment Agreements to consummate the
closings as set forth therein are amended or modified in any respect prior to
the entry of the Approval Order, in each of cases (i), (ii), (iii) and (iv) unless
each Purchaser and the Company otherwise agrees 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
each Purchaser and the Company;


 


(b)           by each 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 any Purchaser if any Purchaser 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 a Purchaser’s
consent, the Warrants have not been issued to such 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 


 


58

















 


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, 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 any Purchaser if
any Purchaser has breached in any material respect its obligations under this
Agreement;


 


(vi)          following the issuance of
the Warrants, if (a) the Company consummates a Competing Transaction, (b) on
or after November 1, 2010, the Company 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 (c) the Company
files notice of a hearing to confirm a plan of reorganization that contemplates
a Change of Control without such Change of Control being subject to either (1) the
written consent of the holders a majority in number of the outstanding shares
of Common Stock or (2) soliciting the approval of the holders of a
majority in number of the outstanding shares of Common Stock in accordance with
the Bankruptcy Code (in either case, regardless of whether such approval is
obtained) and providing for a period of at least 20 Business Days for
acceptance or rejection by such holders in connection with such solicitation;


 


(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 Purchasers
or the Pershing Purchasers in accordance with Section 1.4 of this
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, the Brookfield 


 


59

















 


Investor and the Pershing
Purchasers, in each case, pursuant to Section 6.9 of the other Investment
Agreements;


 


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


 


(ix)           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 any Purchaser or a plan of reorganization with respect to
the Debtors involving the Transactions that is unacceptable to any Purchaser is
filed by the Debtors with the Bankruptcy Court or another court of competent
jurisdiction;


 


(x)            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”);


 


(xi)           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 Transaction, or (B) the
Company or any Subsidiary of the Company enters into a definitive agreement
providing for a Competing Transaction or the Company provides notice to any
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 each 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 


 


60

















 


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 each 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 such 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 breach by any Purchaser of
its obligation to pay to the Company and GGO, as applicable, all amounts
payable by such 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; or


 


(iv)          if a Closing Restraint is in
effect.


 


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 the covenants and agreements
made by the parties herein under 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 of the 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 parties agree that the Warrants held by any member of the Purchaser Group
at the time of such termination (but no Warrants held by any other Person if
transferred as permitted hereunder) shall be deemed cancelled, null and void
and of no further effect.  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.


 


61

















 


(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 Section5.9(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.


 


(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)           “Capital Raising
Activities” means the Company’s efforts to consummate equity and debt
financings for the Company, and sales of properties and other assets of the
Company and its Subsidiaries for cash.


 


(h)           “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.


 


62

















 


(i)            “Change of Control”
means any transaction or series of related transactions, in which, after giving
effect to such transaction or transactions, (i) any Person other than a
member of a Purchaser Group of the Pershing Purchasers or Fairholme Purchasers
acquires beneficial ownership (within the meaning of Rules 13d-3 and 13d-5
promulgated under the Exchange Act), directly or indirectly, of more than fifty
percent (50%) of either (A) the then-outstanding shares of capital stock
of the Company or (B) the combined voting power of the then-outstanding
voting securities of the Company entitled to vote generally in the election of
directors of the Company or (ii) there occurs a direct or indirect sale,
lease, exchange or transfer or other disposition of all or substantially all of
the assets of the Company and its Subsidiaries on a consolidated basis (including
securities of the entity’s directly or indirectly owned Subsidiaries).


 


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


 


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


 


(l)            “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, 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.


 


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(m)          “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.


 


(n)           “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, consultant or independent contractor of the Company or any
of its Significant Subsidiaries has any present or future right to benefits.


 


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


 


(p)           “Competing Transaction”  means, other than the transactions
contemplated by this Agreement or the Plan Summary Term Sheet, or by the other
Investment 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 


 


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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 Initial Investors) or that will be effected together
with the transactions contemplated hereby.


 


(q)           “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
5.16(a) and 5.16(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
5.16(a) and 5.16(b)), and (ii) sets forth the Net Debt
Excess Amount or the Net Debt Surplus Amount, as applicable.


 


(r)            “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.


 


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


 


(t)            [Intentionally Omitted.]


 


(u)           “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.


 


(v)           “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.


 


65
















 


(w)          “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.


 


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


 


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


 


(z)            [Intentionally Omitted.]


 


(aa)         “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 5.16(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 5.16(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.


 


(bb)         “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.


 


(cc)         “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,


 


(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 


 


66

















 


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 the Investment 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 each 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,


 


(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


 


67

















 


(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).


 


(dd)         “Fairholme” means
Fairholme Capital Management, LLC.


 


(ee)         “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.


 


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


 


(gg)         “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.


 


(hh)         [Intentionally Omitted.]


 


(ii)           “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.


 


(jj)           “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 5.16(d), Section 5.16(e) and
Section 5.16(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 


 


68

















 


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 each Purchaser and the Company.


 


(kk)         “GGO Pro Rata Share”
means, with respect to each Purchaser, the percentage set forth on Schedule
I for such Purchaser.


 


(ll)           [Intentionally Omitted.]


 


(mm)       “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
a contractual obligation to make a payment.


 


(nn)         [Intentionally Omitted.]


 


(oo)         “GGP Pro Rata Share”
means, with respect to each Purchaser, the percentage set forth on Schedule
I for such Purchaser.


 


(pp)         “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.


 


(qq)         “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.


 


(rr)           “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.


 


(ss)         “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 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 


 


69

















 


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 in 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.


 


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


 


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


 


(vv)         “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 any Purchaser, as applicable, or their
respective properties or assets.


 


(ww)       “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.


 


(xx)          “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 any Purchaser and/or its Purchaser
Group (or members thereof), 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, contractual or otherwise, with tenants,
customers, suppliers, distributors, partners or employees, or any litigation or
claims arising from allegations of breach of fiduciary 


 


70

















 


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 any Purchaser and/or
Purchaser Group (or members thereof), on the other hand, or with each 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 any Purchaser and/or its Purchaser Group (or
any member thereof), 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.


 


(yy)         “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.


 


(zz)          “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.


 


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


 


71

















 


(bbb)      [Intentionally Omitted.]


 


(ccc)       “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).


 


(ddd)      “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.


 


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


 


(fff)         “Non-Controlling
Properties” means the Company Properties listed on Section 12.1(ddd)
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(fff),
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(fff),
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.


 


(ggg)      “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 Purchasers or the Pershing Purchasers in
accordance with Section 1.4 of this 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.


 


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


 


72

















 


(iii)          “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.


 


(jjj)          “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.


 


(kkk)       “Permitted Replacement
Shares” means shares of New Common Stock, or notes mandatorily convertible
into or exchangeable for shares of New Common Stock, that are sold for cash
proceeds immediately payable to the Company (net of all underwriting and other
discounts, fees, and related consideration; provided, that for purposes
hereof, payments to the Purchasers or the Pershing Purchasers in accordance
with Section 1.4 of this Agreement or the Pershing Agreement,
respectively, shall not be considered a discount, fee, related consideration or
other compensation) of not less than $10.50 per share of New Common Stock (or
in the case of notes, convertible or exchangeable at not less than $10.50 per
share of New Common Stock); provided, that Permitted Replacement Shares
shall not include any New Common Stock sold to any of the Initial Investors or
their Affiliates, except pursuant to the exercise of Subscription Rights
pursuant to this Agreement, the Brookfield Agreement or the Pershing Agreement
(in each case, as defined herein or therein as applicable).


 


(lll)          “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.


 


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(mmm)    “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 a Purchaser shall
deliver to the Company a Dispute Notice.


 


(nnn)      “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.


 


(ooo)      “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.


 


(ppp)      “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.


 


(qqq)      “Purchaser Group” means,
with respect to each Purchaser, such Purchaser, its investment manager and
their respective “controlled Affiliates”.  For such purpose, one or more investment
funds under common investment management shall constitute “controlled
Affiliates” of their investment manager.


 


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


 


(sss)       [Intentionally Omitted.]


 


(ttt)         “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 


 


74

















 


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.


 


(uuu)      “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.


 


(vvv)      “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 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.


 


(www)    “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.


 


(xxx)        “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.


 


(yyy)      “Specified Debt”
means Claims in Classes H through N inclusive, in each case as provided on the
Plan Summary Term Sheet.


 


(zzz)        “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.


 


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


 


(bbbb)    “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.


 


75
















 


(cccc)     “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.


 


(dddd)    “Termination Date”
means December 31, 2010; provided, that if the Confirmation Order
shall have been entered on or prior to December 15, 2010 but the Company,
despite its commercially reasonable efforts, is unable to consummate the
Closing on or prior to December 31, 2010, the Company may extend the
Termination Date for so long as Closing by January 31, 2011 is feasible
and the Company continues to diligently pursue Closing; provided, further,
that the Termination Date shall not be extended beyond January 31, 2011.


 


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


 


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


 


(gggg)     “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.”.


 


(hhhh)    “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.


 


(iiii)         “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 


 


76

















 


business day delivery, in each case with delivery
charges pre-paid and addressed to the following addresses:


 


	
  (a)

  	
  If to a Purchaser (which shall constitute notice to such Purchaser),
  to:

  
	
   

  	
   

  
	
   

  	
  Fairholme
  Capital Management, LLC

  
	
   

  	
  4400
  Biscayne Boulevard, 9th Floor

  
	
   

  	
  Miami,
  Florida 33137

  
	
   

  	
  Attention:

  	
  Charles
  M. Fernandez

  
	
   

  	
  Facsimile:

  	
  (305)
  358-8002

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  Sullivan &
  Cromwell LLP

  
	
   

  	
  125
  Broad Street

  
	
   

  	
  New
  York, New York 10004

  
	
   

  	
  Attention:

  	
  Andrew
  G. Dietderich, Esq.

  
	
   

  	
   

  	
  Alan
  J. Sinsheimer, Esq.

  
	
   

  	
  Facsimile:

  	
  (212)
  558-3588

  
	
   

  	
   

  	
   

  
	
   

  	
  Greenberg
  Traurig, LLP

  
	
   

  	
  401
  East Las Olas Boulevard, Suite 2000

  
	
   

  	
  Fort
  Lauderdale, Florida 33301

  
	
   

  	
  Attention:

  	
  Bruce
  I. March, Esq.

  
	
   

  	
   

  	
  Matthew
  M. Robbins, Esq.

  
	
   

  	
  Facsimile:

  	
  (954)
  765-1477

  
	
   

  	
   

  	
   

  
	
   

  	
  Herrick,
  Feinstein, LLP

  
	
   

  	
  2
  Park Avenue

  
	
   

  	
  New
  York, NY 10016

  
	
   

  	
  Attention:

  	
  Joshua
  J. Angel, Esq.

  
	
   

  	
   

  	
  John
  Rogers, Esq.

  
	
   

  	
  Facsimile:

  	
  (212)
  592-1500

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  If to the Company, to:

  
	
   

  	
   

  
	
   

  	
  General
  Growth Properties, Inc.

  
	
   

  	
  110
  N. Wacker Drive

  
	
   

  	
  Chicago, Illinois
  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, New York 10153

  
	
   

  	
  Attention:

  	
  Marcia
  L. Goldstein, Esq.

  



 


77

















 


	
   

  	
   

  	
  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 a Purchaser’s
rights, interests or obligations hereunder (including, without limitation, the
right to receive any securities pursuant to the Transactions), may be assigned
or transferred, in whole or in part, by such Purchaser (a) to one or more
members of its Purchaser Group; provided, that no such assignment shall
release such Purchaser from its obligations hereunder to be performed by such
Purchaser on or prior to the Closing Date or (b) with the prior written
consent of the Company, not to be unreasonably withheld, conditioned or
delayed, to one or more credit-worthy financial institutions who agree in
writing to perform the applicable obligations of such Purchaser hereunder (any
assignment under clause (b) to which the Company has so consented shall
release such Purchaser from its obligations hereunder to the extent of the
obligations assigned).  Without prejudice
to the foregoing, the Company agrees that Purchasers may designate to
Blackstone Real Estate Partners VI L.P., a Delaware limited partnership
(together with its permitted assigns, “Blackstone”), (i) the
Purchasers’ right to purchase 20,719,738 of the Shares (the “Blackstone
Assigned Shares”) and 100,191 of the GGO Shares (together with the
Blackstone Assigned Shares, the “Blackstone Assigned Securities”), in
each case, that the Purchasers are entitled to purchase at Closing pursuant to
this Agreement, (ii) the Purchasers’ right to receive 1,785,714 of the New
Warrants (the “Blackstone Assigned Warrants”) and 83,333 of the GGO
Warrants, in each case, issuable to the Purchasers pursuant to this Agreement,
and (iii) the Purchasers’ right to receive 7.634% of the shares of Common
Stock (and other Share Equivalents) which are offered to the Purchasers
pursuant to the Purchasers’ pre-Closing subscription rights set forth in Section 7.1(u) in
the event the Purchasers elect to purchase the shares offered to them 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 to clause (iii) 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 the
Brookfield Investor), 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 any 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 


 


78

















 


Price at Closing as aforesaid, (x) the
Purchasers 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
Purchasers 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 a Purchaser to
it.  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, no Purchaser may assign any of its rights, interests or obligations
under this Agreement to the extent such assignment would preclude the
applicable securities Laws exemptions from being available or such assignment
would cause a failure of the closing condition in Section 7.1(u) of
the Brookfield Agreement.


 


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.


 


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.  EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF, AND VENUE IN, THE UNITED STATES BANKRUPTCY COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND EACH PARTY WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS.


 


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 


 


79

















 


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 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
intention to support any Competing Transaction.


 


80

















 


(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.


 


(e)           Unless otherwise agreed in
writing between the Company and each Purchaser, wherever this Agreement
requires the action by, consent of or delivery to Purchaser, Purchasers, each
Purchaser or similar parties, each Purchaser hereby appoints Fairholme as its
attorney-in-fact to exercise all of the rights of such Purchaser hereunder
(except for the assumption of any funding or related liabilities or
obligations), and the Company may rely on any instructions or elections made by
such Person; provided, that any such action by, consent of or delivery
to Fairholme hereunder shall constitute the separate, and not joint, action by,
consent of or delivery to each Purchaser.


 


SECTION 13.10  Adjustment of Share Numbers and Prices.  The number of Shares to be purchased by each
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 such 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 or
the consummation of the repurchase of Repurchase Shares (as defined in the
Pershing Agreement) or the Put Option (as defined in the Pershing Agreement),
as applicable, 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, or the applicable price for the definition of Permitted Replacement Shares, 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 or of any other agreement between them with respect to the
Transaction were not performed in accordance with their specific terms or were
otherwise breached.  It is accordingly
agreed that, in addition to any other applicable remedies at law or equity, the
parties shall be entitled to an injunction or injunctions, without proof of
damages, to prevent breaches of this Agreement or of any other agreement
between them with respect to the Transaction and to enforce specifically the
terms and provisions of this Agreement.


 


(b)           To the fullest extent
permitted by applicable law, the parties shall not assert, and hereby waive,
any claim or any such damages, whether or not accrued and whether or not known
or suspect to exist in its favor, against any other party and its respective Affiliates,
members, 


 


81

















 


members’ affiliates, officers, directors, partners,
trustees, employees, attorneys and agents on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort
or duty imposed by any applicable legal requirement) arising out of, in
connection with, or as a result of, this Agreement or of any other agreement
between them with respect to the Transaction or the transactions contemplated
hereby or thereby.


 


(c)           Prior to the entry of the
Confirmation Order, other than with respect to the Company’s obligations under Section 5.1(c),
each 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 such 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 Order, each Purchaser shall be entitled to specific performance of the
Company’s obligation to issue the Warrants as well as the Company’s obligations
under Section 5.1(c) hereof.


 


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


 


(e)           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 any Purchaser or its Purchaser Group by reason of or in
connection with the Transaction; provided, however, that nothing
shall prohibit the Company from instituting an action against any Purchaser in
connection with this Agreement in accordance with the provisions of this Section 13.11.


 


(f)            For the avoidance of doubt,
the failure of any Purchaser under this Agreement to satisfy its obligations
hereunder shall not relieve any other Purchaser from its obligations hereunder,
including the obligation to consummate the transactions hereunder if all other
conditions to such Purchaser’s obligations have been satisfied or waived.


 


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, entry of the Approval Order,
and (b) with respect to the remainder of the provisions hereof, entry of
the Confirmation Order.


 


[Signature Page Follows]


 


82

















 


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.


 


 


	
   

  	
  FAIRHOLME FUNDS, INC.,

  
	
   

  	
  on behalf of its series The Fairholme Fund

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce R. Berkowitz

  
	
   

  	
  Name:

  	
  Bruce R. Berkowitz

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FAIRHOLME FUNDS, INC.,

  
	
   

  	
  on behalf of its series Fairholme Focused Income
  Fund

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce R. Berkowitz

  
	
   

  	
  Name:

  	
  Bruce R. Berkowitz

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas H. Nolan, Jr.

  
	
   

  	
  Name:

  	
  Thomas
  H. Nolan, Jr.

  
	
   

  	
  Title:

  	
  President
  and Chief Operating Officer

  



 


 


[SIGNATURE
PAGE OF AMENDED AND RESTATED STOCK PURCHASE AGREEMENT]