Exhibit 10.3


 


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

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Purchase
  of New Common Stock

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Closing

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Company
  Rights Offering Election

  	
  5

  
	
   

  	
   

  	
   

  
	
  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 Fairholme Agreement

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  GGO
  SHARE DISTRIBUTION AND PURCHASE OF GGO COMMON STOCK

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  GGO
  Share Distribution

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Purchase
  of GGO Common Stock

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REPRESENTATIONS
  AND WARRANTIES OF THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Organization
  and Qualification

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Corporate
  Power and Authority

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Execution
  and Delivery; Enforceability

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Authorized
  Capital Stock

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Issuance

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  No
  Conflict

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Consents
  and Approvals

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Company
  Reports

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  No
  Undisclosed Liabilities

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  No
  Material Adverse Effect

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  No
  Violation or Default: Licenses and Permits

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Legal
  Proceedings

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.13

  	
  Investment
  Company Act

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  Compliance
  With Environmental Laws

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 3.15

  	
  Company
  Benefit Plans

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 3.16

  	
  Labor
  and Employment Matters

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 3.17

  	
  Insurance

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.18

  	
  No
  Unlawful Payments

  	
  24

  
				



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.19

  	
  No
  Broker’s Fees

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.20

  	
  Real
  and Personal Property

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.21

  	
  Tax
  Matters

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 3.22

  	
  Material
  Contracts

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 3.23

  	
  Certain
  Restrictions on Charter and Bylaws Provisions; State Takeover Laws

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 3.24

  	
  No
  Other Representations or Warranties

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS
  AND WARRANTIES OF PURCHASER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Power
  and Authority

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Execution
  and Delivery

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  No
  Conflict

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Consents
  and Approvals

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Compliance
  with Laws

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Legal
  Proceedings

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.8

  	
  No
  Broker’s Fees

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.9

  	
  Sophistication

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.10

  	
  Purchaser
  Intent

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.11

  	
  Reliance
  on Exemptions

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.12

  	
  REIT
  Representations

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.13

  	
  Financial
  Capability

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.14

  	
  No
  Other Representations or Warranties

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.15

  	
  Acknowledgement

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  COVENANTS
  OF THE COMPANY AND PURCHASER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Bankruptcy
  Court Motions and Orders

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Warrants,
  New Warrants and GGO Warrants

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  [Intentionally
  Omitted.]

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Listing

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.5

  	
  Use
  of Proceeds

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 5.6

  	
  Access
  to Information

  	
  38

  
				



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.7

  	
  Competing
  Transactions

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.8

  	
  Reservation
  for Issuance

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.9

  	
  Subscription
  Rights

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Company
  Board of Directors

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Notification
  of Certain Matters

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Further
  Assurances

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  [Intentionally
  Omitted.]

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Rights
  Agreement; Reorganized Company Organizational Documents

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Stockholder
  Approval

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 5.16

  	
  Closing
  Date Net Debt

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 5.17

  	
  Determination
  of Domestically Controlled REIT Status

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  ADDITIONAL
  COVENANTS OF PURCHASER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Information

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Purchaser
  Efforts

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Plan
  Support

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Transfer
  Restrictions

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  [Intentionally
  Omitted.]

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  REIT
  Representations and Covenants

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Non-Control
  Agreement

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  [Intentionally
  Omitted.]

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Additional
  Backstops

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF PURCHASER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Conditions
  to the Obligations of Purchaser

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONDITIONS
  TO THE OBLIGATIONS OF THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Conditions
  to the Obligations of the Company

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  [INTENTIONALLY
  OMITTED]

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  SURVIVAL
  OF REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Survival
  of Representations and Warranties

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  TERMINATION

  	
   

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Termination

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Effects
  of Termination

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Defined
  Terms

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Notices

  	
  97

  
	
   

  	
   

  	
   

  
	
  Section 13.2

  	
  Assignment;
  Third Party Beneficiaries

  	
  98

  
	
   

  	
   

  	
   

  
	
  Section 13.3

  	
  Prior
  Negotiations; Entire Agreement

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 13.4

  	
  Governing
  Law; Venue

  	
  99

  
	
   

  	
   

  	
   

  
	
  Section 13.5

  	
  Company
  Disclosure Letter

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 13.6

  	
  Counterparts

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 13.7

  	
  Expenses

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 13.8

  	
  Waivers
  and Amendments

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 13.9

  	
  Construction

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 13.10

  	
  Adjustment
  of Share Numbers and Prices

  	
  101

  
	
   

  	
   

  	
   

  
	
  Section 13.11

  	
  Certain
  Remedies

  	
  102

  
	
   

  	
   

  	
   

  
	
  Section 13.12

  	
  Bankruptcy
  Matters

  	
  103

  
				



 


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:

  	
  Fairholme
  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

  



 


v
















 


INDEX OF DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  2006 Bank Loan

  	
   

  	
  79

  
	
  Additional Financing

  	
   

  	
  66

  
	
  Additional Sales Period

  	
   

  	
  79

  
	
  Adequate Reserves

  	
   

  	
  30

  
	
  Adjusted CDND

  	
   

  	
  52

  
	
  Affiliate

  	
   

  	
  79

  
	
  Agreement

  	
   

  	
  1

  
	
  Amended and Restated Agreement

  	
   

  	
  1

  
	
  Anticipated Debt Paydowns

  	
   

  	
  66

  
	
  Approval Motion

  	
   

  	
  36

  
	
  Approval Order

  	
   

  	
  36

  
	
  Asset Sales

  	
   

  	
  66

  
	
  Backstop Investors

  	
   

  	
  58

  
	
  Backstop Shares

  	
   

  	
  7

  
	
  Bankruptcy Cases

  	
   

  	
  1

  
	
  Bankruptcy Code

  	
   

  	
  1

  
	
  Bankruptcy Court

  	
   

  	
  1

  
	
  Blackstone

  	
   

  	
  98

  
	
  Blackstone Assigned Securities

  	
   

  	
  98

  
	
  Blackstone Assigned Shares

  	
   

  	
  98

  
	
  Blackstone Assigned Warrants

  	
   

  	
  98

  
	
  Blackstone Purchase Price

  	
   

  	
  99

  
	
  Brazilian Entities

  	
   

  	
  80

  
	
  Bridge Note Amount

  	
   

  	
  9

  
	
  Bridge Note Interest Rate

  	
   

  	
  9

  
	
  Bridge Note Maturity Date

  	
   

  	
  9

  
	
  Bridge Notes

  	
   

  	
  9

  
	
  Bridge Securities

  	
   

  	
  59

  
	
  Brookfield Agreement

  	
   

  	
  2

  
	
  Brookfield Consortium Member

  	
   

  	
  80

  
	
  Brookfield Investor

  	
   

  	
  2

  
	
  Business Day

  	
   

  	
  80

  
	
  Calculation Date

  	
   

  	
  52

  
	
  Capital Raising Activities

  	
   

  	
  80

  
	
  Cash Equivalents

  	
   

  	
  80

  
	
  Change of Control

  	
   

  	
  80

  
	
  Chapter 11

  	
   

  	
  1

  
	
  Claims

  	
   

  	
  81

  
	
  Clawback Fee

  	
   

  	
  81

  
	
  Clawback Percentage

  	
   

  	
  6

  
	
  Clawback Shares

  	
   

  	
  6

  



 


vi

















 


	
  Closing

  	
   

  	
  5

  
	
  Closing Date

  	
   

  	
  5

  
	
  Closing Date Net Debt

  	
   

  	
  81

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

  	
   

  	
  82

  
	
  Closing Restraint

  	
   

  	
  77

  
	
  CMPC

  	
   

  	
  12

  
	
  CNDAS Dispute Notice

  	
   

  	
  50

  
	
  CNDAS Disputed Items

  	
   

  	
  50

  
	
  Code

  	
   

  	
  22

  
	
  Common Stock

  	
   

  	
  1

  
	
  Company

  	
   

  	
  2

  
	
  Company Benefit Plan

  	
   

  	
  82

  
	
  Company Board

  	
   

  	
  82

  
	
  Company Disclosure Letter

  	
   

  	
  13

  
	
  Company Ground Lease Property

  	
   

  	
  27

  
	
  Company Mortgage Loan

  	
   

  	
  28

  
	
  Company Option Plans

  	
   

  	
  15

  
	
  Company Properties

  	
   

  	
  25

  
	
  Company Property

  	
   

  	
  25

  
	
  Company Property Lease

  	
   

  	
  27

  
	
  Company Rights Offering

  	
   

  	
  5

  
	
  Company SEC Reports

  	
   

  	
  19

  
	
  Competing Transaction

  	
   

  	
  82

  
	
  Conclusive Net Debt Adjustment Statement

  	
   

  	
  83

  
	
  Confirmation Order

  	
   

  	
  62

  
	
  Confirmed Debtors

  	
   

  	
  92

  
	
  Contingent and Disputed Debt Claims

  	
   

  	
  83

  
	
  Contract

  	
   

  	
  83

  
	
  control

  	
   

  	
  91

  
	
  Corporate Level Debt

  	
   

  	
  83

  
	
  Dealer Manager

  	
   

  	
  58

  
	
  Debt

  	
   

  	
  84

  
	
  Debt Cap

  	
   

  	
  66

  
	
  Debtors

  	
   

  	
  1

  
	
  Designation Conditions

  	
   

  	
  4

  
	
  DIP Loan

  	
   

  	
  84

  
	
  Disclosure Statement

  	
   

  	
  84

  
	
  Disclosure Statement Order

  	
   

  	
  63

  
	
  Dispute Notice

  	
   

  	
  49

  
	
  Disputed Items

  	
   

  	
  50

  
	
  Domestically Controlled REIT

  	
   

  	
  53

  
	
  Effective Date

  	
   

  	
  5

  
	
  Encumbrances

  	
   

  	
  25

  
	
  Environmental Laws

  	
   

  	
  22

  



 


vii

















 


	
  Equity Exchange

  	
   

  	
  2

  
	
  Equity Securities

  	
   

  	
  15

  
	
  ERISA

  	
   

  	
  84

  
	
  ERISA Affiliate

  	
   

  	
  23

  
	
  Excess Equity Capital Proceeds

  	
   

  	
  8

  
	
  Excess Surplus Amount

  	
   

  	
  84

  
	
  Exchangeable Notes

  	
   

  	
  84

  
	
  Excluded Claims

  	
   

  	
  84

  
	
  Excluded Non-US Plans

  	
   

  	
  23

  
	
  Fairholme Agreement

  	
   

  	
  3

  
	
  Fairholme Purchasers

  	
   

  	
  3

  
	
  Foreign Plan

  	
   

  	
  23

  
	
  Fully Diluted Basis

  	
   

  	
  86

  
	
  Fully Diluted GGO Economic Interest

  	
   

  	
  87

  
	
  GAAP

  	
   

  	
  87

  
	
  GGO

  	
   

  	
  2

  
	
  GGO Agreement

  	
   

  	
  43

  
	
  GGO Board

  	
   

  	
  43

  
	
  GGO Common Share Amount

  	
   

  	
  87

  
	
  GGO Common Stock

  	
   

  	
  11

  
	
  GGO Non-Control Agreement

  	
   

  	
  87

  
	
  GGO Note Amount

  	
   

  	
  87

  
	
  GGO Per Share Purchase Price

  	
   

  	
  13

  
	
  GGO Pro Rata Share

  	
   

  	
  87

  
	
  GGO Promissory Note

  	
   

  	
  88

  
	
  GGO Purchase Price

  	
   

  	
  13

  
	
  GGO Representative

  	
   

  	
  11

  
	
  GGO Setup Costs

  	
   

  	
  88

  
	
  GGO Share Distribution

  	
   

  	
  12

  
	
  GGO Shares

  	
   

  	
  13

  
	
  GGO Warrants

  	
   

  	
  37

  
	
  GGP Backstop Rights Offering

  	
   

  	
  57

  
	
  GGP Backstop Rights Offering Amount

  	
   

  	
  58

  
	
  GGP Pro Rata Share

  	
   

  	
  88

  
	
  Governmental Entity

  	
   

  	
  88

  
	
  Hazardous Materials

  	
   

  	
  22

  
	
  Hughes Agreement

  	
   

  	
  88

  
	
  Hughes Amount

  	
   

  	
  87

  
	
  Hughes Heirs Obligations

  	
   

  	
  89

  
	
  Identified Assets

  	
   

  	
  11

  
	
  Indebtedness

  	
   

  	
  89

  
	
  Initial Investors

  	
   

  	
  3

  
	
  Investment Agreements

  	
   

  	
  3

  
	
  Joint Venture

  	
   

  	
  89

  
	
  Knowledge

  	
   

  	
  89

  



 


viii

















 


	
  Law

  	
   

  	
  89

  
	
  Liquidity Equity Issuances

  	
   

  	
  89

  
	
  Liquidity Target

  	
   

  	
  65

  
	
  Material Adverse Effect

  	
   

  	
  90

  
	
  Material Contract

  	
   

  	
  91

  
	
  Material Lease

  	
   

  	
  28

  
	
  Measurement Date

  	
   

  	
  15

  
	
  Most Recent Statement

  	
   

  	
  25

  
	
  MPC Assets

  	
   

  	
  91

  
	
  MPC Taxes

  	
   

  	
  91

  
	
  Net Debt Excess Amount

  	
   

  	
  91

  
	
  Net Debt Surplus Amount

  	
   

  	
  91

  
	
  New Common Stock

  	
   

  	
  2

  
	
  New Debt

  	
   

  	
  65

  
	
  New DIP Agreement

  	
   

  	
  62

  
	
  New Warrant Vesting Date

  	
   

  	
  37

  
	
  New Warrants

  	
   

  	
  37

  
	
  Non-Control Agreement

  	
   

  	
  91

  
	
  Non-Controlling Properties

  	
   

  	
  91

  
	
  NYSE

  	
   

  	
  37

  
	
  Offering Premium

  	
   

  	
  92

  
	
  Operating Partnership

  	
   

  	
  92

  
	
  Original Agreement

  	
   

  	
  1

  
	
  PBGC

  	
   

  	
  23

  
	
  Per Share Purchase Price

  	
   

  	
  3

  
	
  Permitted Claims

  	
   

  	
  92

  
	
  Permitted Claims Amount

  	
   

  	
  93

  
	
  Permitted Replacement Shares

  	
   

  	
  93

  
	
  Permitted Title Exceptions

  	
   

  	
  25

  
	
  Person

  	
   

  	
  93

  
	
  Petition Date

  	
   

  	
  1

  
	
  Plan

  	
   

  	
  1

  
	
  Plan Debtors

  	
   

  	
  92

  
	
  Plan Summary Term Sheet

  	
   

  	
  1

  
	
  PMA Claims

  	
   

  	
  92

  
	
  Preliminary Closing Date Net Debt Review Deadline

  	
   

  	
  93

  
	
  Preliminary Closing Date Net Debt Review Period

  	
   

  	
  93

  
	
  Preliminary Closing Date Net Debt Schedule

  	
   

  	
  49

  
	
  Proportionally Consolidated Debt

  	
   

  	
  93

  
	
  Proportionally Consolidated Unrestricted Cash

  	
   

  	
  94

  
	
  Proposed Approval Order

  	
   

  	
  36

  
	
  Proposed Securities

  	
   

  	
  39

  
	
  PSCM

  	
   

  	
  1

  
	
  Purchase Price

  	
   

  	
  3

  
	
  Purchaser

  	
   

  	
  1

  



 


ix

















 


	
  Purchaser Board Designee

  	
   

  	
  43

  
	
  Purchaser GGO Board Designees

  	
   

  	
  43

  
	
  Purchaser Group

  	
   

  	
  94

  
	
  Put Notice

  	
   

  	
  7

  
	
  Put Option

  	
   

  	
  7

  
	
  Put Shares

  	
   

  	
  6

  
	
  Put Termination Notice

  	
   

  	
  8

  
	
  Refinance Cap

  	
   

  	
  69

  
	
  Reinstated Amounts

  	
   

  	
  65

  
	
  Reinstatement Adjustment Amount

  	
   

  	
  94

  
	
  REIT

  	
   

  	
  30

  
	
  REIT Subsidiary

  	
   

  	
  30

  
	
  Reorganized Company

  	
   

  	
  2

  
	
  Reorganized Company Organizational Documents

  	
   

  	
  47

  
	
  Repurchase Notice

  	
   

  	
  6

  
	
  Repurchase Shares

  	
   

  	
  6

  
	
  Reserve

  	
   

  	
  93

  
	
  Reserve Surplus Amount

  	
   

  	
  94

  
	
  Reserved Shares

  	
   

  	
  6

  
	
  Resolution Period

  	
   

  	
  49

  
	
  Rights Agreement

  	
   

  	
  94

  
	
  Rights Offering Election

  	
   

  	
  5

  
	
  Rouse Bonds

  	
   

  	
  95

  
	
  Rule 144

  	
   

  	
  56

  
	
  Sales Cap

  	
   

  	
  68

  
	
  SEC

  	
   

  	
  19

  
	
  Securities Act

  	
   

  	
  19

  
	
  Settlement Date

  	
   

  	
  7

  
	
  Share Cap Number

  	
   

  	
  66

  
	
  Share Equivalent

  	
   

  	
  95

  
	
  Shares

  	
   

  	
  3

  
	
  Significant Subsidiaries

  	
   

  	
  95

  
	
  SOX

  	
   

  	
  53

  
	
  Specified Debt

  	
   

  	
  95

  
	
  Subscription Right

  	
   

  	
  39

  
	
  Subsidiary

  	
   

  	
  95

  
	
  Synthetic Lease Obligation

  	
   

  	
  89

  
	
  Target Net Debt

  	
   

  	
  95

  
	
  Tax Matters Agreement

  	
   

  	
  95

  
	
  Tax Protection Agreements

  	
   

  	
  95

  
	
  Tax Return

  	
   

  	
  30

  
	
  Taxes

  	
   

  	
  30

  
	
  Termination Date

  	
   

  	
  96

  
	
  Total Purchase Amount

  	
   

  	
  4

  
	
  Transactions

  	
   

  	
  96

  



 


x

















 


	
  Transfer

  	
   

  	
  56

  
	
  TRUPS

  	
   

  	
  96

  
	
  U.S. Persons

  	
   

  	
  53

  
	
  Unrestricted Cash

  	
   

  	
  96

  
	
  Unrestricted Date

  	
   

  	
  54

  
	
  Unsecured Indebtedness

  	
   

  	
  96

  
	
  UPREIT Units

  	
   

  	
  96

  
	
  Warrant Agreement

  	
   

  	
  36

  
	
  Warrants

  	
   

  	
  36

  



 


xi
















 


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 Pershing Square
Capital Management, L.P. (“PSCM”), on behalf of Pershing Square, L.P., a
Delaware limited partnership, Pershing Square II, L.P., a Delaware limited
partnership, Pershing Square International, Ltd. a Cayman Islands exempted
company and Pershing Square International V, Ltd., a Cayman Islands exempted
company, (each, except PSCM, 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 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, 


 


1

















 


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 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
commit to purchase the Shares and the GGO Shares at a fixed price for the term
hereof.


 


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


 


WHEREAS, on and effective as of the date hereof, the
Company entered into an agreement (in the form attached hereto as Exhibit
C-1 together with any amendments thereto as have been approved by 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 


 


2

















 


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 “Fairholme Agreement” and, together with this Agreement
and the Brookfield Agreement, the “Investment Agreements”) with The
Fairholme Fund, a series of Fairholme Funds, Inc. and Fairholme Focused Income
Fund, a series of Fairholme Funds, Inc. (the “Fairholme Purchasers”  and, together with each Purchaser and the
Brookfield Investor, the “Initial Investors”) pursuant to which the
Fairholme Purchasers have agreed to make (i) an investment of up to
$2,714,285,710 in the Reorganized Company in the form of the purchase of shares
of New Common Stock and (ii) an investment of $62,500,000 in GGO in the form of
the purchase of shares of GGO Common Stock.


 


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 


 


3

















 


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 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, 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.


 


(e)           The obligations of each
Purchaser hereunder shall be determined as follows:  PSCM will deliver written notice to the
Company on or before the 20th day following execution of this Agreement wherein
PSCM will designate the “GGP Pro Rata Share” and the “GGO Pro Rata Share” for
each Purchaser; provided that the aggregate GGP Pro Rata Share of the
Purchasers shall equal the quotient of 1.0 divided by 3.5 and the aggregate GGO
Pro Rata Share of the Purchasers shall equal 50%.  If PSCM fails to make such allocations to
Purchasers that are reasonably creditworthy in light of the allocation, each
Purchaser (other than Pershing Square International, Ltd. and Pershing Square
International V, Ltd.) will be bound jointly and severally hereby, and Pershing
Square International Ltd. and Pershing Square International V, Ltd. shall
unconditionally guarantee the performance hereunder of the other Purchasers.


 


4

















 


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 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 


 


5

















 


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 and/or subject
to a put option pursuant to this Section 1.4(b) and/or Section
1.4(c), as applicable (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.  The
first 35,000,000 of such Reserved Shares shall constitute “Put Shares”
governed by Section 1.4(c).  Any Reserved Shares in excess of 35,000,000 Shares
shall constitute “Repurchase Shares”. With respect to any Repurchase
Shares, the Company shall pay to each Purchaser in cash on the Effective Date
an amount equal to $0.25 per Repurchase 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 Repurchase Shares under this Agreement and
the initial number of Reserved Shares (as defined in the Fairholme Agreement)
under the Fairholme Agreement.  The
purchase price for any Repurchase Shares shall be
$10.00 per Share, payable in cash in immediately available funds against
delivery of the Repurchase 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 Fairholme 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 Fairholme Agreement.  The aggregate Clawback Percentages shall at
all times equal 100%.


 


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


 


(c)           With
respect to the Put Shares, the following provisions will apply:


 


6

















 


(i)            The Company shall not be
obligated to sell, and no Purchaser shall be obligated to purchase, any Put Shares at Closing.  Instead, the
Company shall have the option (the “Put Option”) to sell to the
Purchasers on the first Business Day
occurring at least 210 days after the Effective Date
(the “Settlement Date”) a number of Shares up to the Deficiency Amount
(the “Backstop Shares”).


 


(ii)           The Company may exercise its
Put Option by irrevocable written notice (a “Put Notice”) delivered to
each Purchaser on the third Business Day
prior to the Settlement Date (it being agreed that the Company may at its
election for convenience deliver the Put Notice prior to such date, but it
shall be revocable until, and become effective only as of, the third Business Day prior to the Settlement Date), and the
Put Option shall expire if the Put Notice is not so delivered.  The Put Notice and this Agreement together
shall constitute the binding agreement of the Company to sell to each
Purchaser, and of each Purchaser to purchase from the Company, on the
Settlement Date a number of Shares equal to such Purchaser’s pro rata share of
the Backstop Shares for a purchase price per share equal to the Per Share
Purchase Price (payable in cash in immediately available funds).  Closing of the sale and purchase of the
Backstop Shares shall occur at 9:30 a.m., New York time, on the Settlement 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.  Backstop Shares shall
constitute “Shares” for all purposes of this Agreement, including without
limitation, the representations and warranties of the Company set forth in Article
III.  All conditions precedent to the
obligation of the Company to issue and sell, and of each Purchaser to purchase,
Backstop Shares shall be deemed satisfied on the Settlement Date, provided
that (A) the obligations of the Company and each Purchaser on the Settlement
Date shall be subject to the satisfaction (or waiver by each of them) of the
condition precedent that no judgment, injunction, decree or other legal
restraint shall prohibit settlement and (B) the obligation of each Purchaser on
the Settlement Date shall be subject to the additional condition precedent that
the representations and warranties of the Company in Section 3.5(a) as
they relate to the Backstop Shares shall be true and correct at and as of the
Settlement Date as if made at and as of the Settlement Date.  Each Purchaser’s 


 


7

















 


obligation with respect to
its pro rata share of the Backstop Shares will be independent of the payment or
nonpayment of any amount by the Company with respect to any Bridge Note (as
described below).


 


(iii)          For purposes of the Company’s
Put Option, the “Deficiency Amount” shall be the sum, if positive, of:


 


(A) the aggregate number of Put Shares under this Agreement;


 


minus


 


(B) the quotient of (x) Excess Equity Capital Proceeds divided by (y) the Per
Share Purchase Price.


 


The Company shall notify the Purchasers at such time
as the Deficiency Amount has been reduced to zero (the “Put Termination
Notice”) and, upon such notice, the Put Option shall terminate and be
without further force or effect.  The
Company also may terminate the Put Option voluntarily by written notice at any
time.  Commencing on the 90th day after
the Effective Date, for each day the Deficiency Amount is outstanding, a fee
shall accrue at a rate per annum equal to 2.0% of an amount equal to the
product of (i) the outstanding Deficiency Amount from time to time and (ii)
$10.00, with the accrued and unpaid amount payable in arrears on the earlier of
the termination of the Put Option or the Settlement Date.


 


For
the purposes of Section 1.4(c), “Excess Equity Capital Proceeds”
means the excess, if any, as of the Settlement Date of (a) cash proceeds to the
Company (net of all underwriting or other discounts, fees or other compensation
and related expenses) from the sale of Common Stock, New Common Stock and Share
Equivalents after the date hereof and prior to the Settlement Date (other than
(i) the sale of 250,000,000 shares of New Common Stock under the Brookfield
Agreement and the sale of the first 190,000,000 shares of New Common Stock
under this Agreement and the Fairholme Agreement (in each case including any
such shares of New Common Stock purchased by assigns or designees), (ii) the
issuance of New Common Stock to settle the Hughes Heirs Obligations and (iii)
the issuance of New Common Stock to employees and directors of the Company)
over (b) $2,050,000,000.


 


8

















 


(iv)          PSCM, in its sole
discretion, may designate that some or all of the Backstop Shares be issued in
the name of, and delivered (together with the payment obligations therewith)
to, the other members of the Purchaser Group. 
Each Purchaser (other than Pershing Square International, Ltd. and
Pershing Square International V, Ltd.) will be bound jointly and severally with
respect to the obligations of all the Purchasers with respect to the Put
Option.


 


(v)           In addition, if it has
designated any Put Shares, the
Company shall issue to the Purchasers, and the Purchasers shall purchase from
the Company, on the Effective Date one or more unsecured notes with terms
consistent with this Section 1.4 and in form to be mutually agreed prior
to the designation of Put Shares (the “Bridge
Notes”) in an amount equal to the product of (A) the Put Shares multiplied by (B) the Per Share Purchase Price (the “Bridge
Note Amount”).  The Bridge Notes
shall (1) have a final maturity date and be unconditionally payable on the first Business Day occurring at least 211 days after the
Effective Date (the “Bridge Note Maturity Date”), (2) bear interest at a
rate of 6.00% per annum (the “Bridge
Note Interest Rate”), with interest accruing and compounding quarterly, but
payable only upon prepayment or payment of principal, (3) be unsecured general
obligations of the Company without guarantee by any subsidiary, (4) have a
successorship covenant customary for short term indebtedness of public
companies, but no financial, operational restriction or similar covenants or
any business representations or warranties and (5) have events of default
limited to non-payment and customary bankruptcy matters, but for the avoidance
of doubt, no cross-default, cross-acceleration or similar clauses.  In
return for the Bridge Notes, each Purchaser shall deliver to the Company on the
Effective Date cash proceeds in the amount of such Purchaser’s pro rata share
of the Bridge Note Amount.  If the
Company has not repaid Purchasers the full amount outstanding under the Bridge
Notes on or before the Bridge Note Maturity Date, interest will accrue on the
unpaid amount of the Bridge Notes, including due but unpaid interest, at a
default rate equal to the Bridge Note Interest Rate plus 2.00%.  The Bridge Notes may be prepaid at any time without premium or penalty.  The Bridge Note shall be freely transferable
by holders; provided that any transfer shall require the consent of the
Company, not to be 


 


9

















 


unreasonably
withheld, at any time that no event of default thereunder is continuing (and it
being agreed that the Company shall not be obligated to register any Bridge
Note under securities laws).


 


(vi)          The Company and each
Purchaser agree to work together in good faith with the aim to negotiate and
agree on mutually acceptable definitive form of the Bridge Notes as promptly as
practicable.


 


(vii)         In the event that the
Company pays or declares any dividend or distribution on New Common Shares with
a record date after the Effective Date and prior to the Settlement Date, (A)
the Per Share Purchase Price shall be decreased by the value of such dividend
or distribution (with (1) dividends or distributions payable in New Common
Shares valued at the Per Share Purchase Price (before giving effect to such
adjustment), (2) dividends or distributions payable in cash valued at the
amount of cash, and (3) dividends or distributions of other property valued at “Fair
Market Value” as defined in the form of Warrant Agreement) and (B) the number
of Shares subject to the Put Option shall be increased by multiplying such
number by a fraction the numerator of which is the Per Share Purchase Price
before giving effect to such adjustment and the denominator of which is the Per
Share Purchase Price after giving effect to such adjustment.


 


(viii)        At Closing, the Purchasers
shall collaterally assign and post the Bridge Notes (or an amount of cash and
freely marketable securities with a fair market value equal to the principal
amount of the Bridge Notes) as collateral for performance of the Purchasers’
obligations under the Put Option pursuant to customary collateral arrangements
reasonably acceptable to the parties.  The amount of collateral to be
posted shall be measured by the principal amount of the Bridge Note outstanding
from time to time and there shall be no requirement to post additional
collateral if the Bridge Note is voluntarily paid by the Company prior to its
maturity.


 


(ix)           For the purposes of this Section
1.4(c), the “pro rata share” of each Purchaser means the percentage
designated by PSCM by written notice to the Company on or prior to the
Effective Date; provided that the sum of such pro rata shares shall be 100%.


 


10
















 


(x)            The Bridge Note Amount shall
not be included in the calculation of Closing Date Net Debt or Closing Date Net
Debt W/O Reinstatement Adjustment pursuant to Section 5.16.


 


SECTION 1.5               Pro Rata Reductions with
Fairholme 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 PSCM unless the Company is making a similar election
under the Fairholme 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 Fairholme Purchasers under the Fairholme 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 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 each Purchaser
to serve as a representative of GGO (the “GGO Representative”) and shall
contribute to GGO (directly or indirectly) the assets (and/or equity interests
related thereto) set forth in Exhibit E hereto and have GGO assume
directly or indirectly the associated liabilities (the “Identified Assets”);
provided, however, that to the extent the Company is prohibited
by Law from contributing one or more of the Identified Assets to GGO or the
contribution thereof would breach or give rise to a default under any Contract,
agreement or instrument that would, in the good faith judgment of the Company
in consultation with the GGO Representative, impair in any material respect the
value of the relevant Identified Asset or give rise to additional liability
(other than liability that would not, in the aggregate, be material) on the
part of GGO or the Company or a Subsidiary of the Company, the Company shall (i) to
the extent not prohibited by Law or would not give rise to such a default, take
such action or cause to be taken such other actions in order to place GGO,
insofar as reasonably possible, in the same economic position as if such
Identified Asset had been transferred as contemplated hereby and so that,
insofar as reasonably possible, substantially all the benefits and burdens
(including all obligations thereunder but excluding any obligations that arise
out of the transfer of the Identified Asset to the extent included in Permitted
Claims) relating to such Identified Asset, including possession, use, risk of
loss, potential for gain and control of such Identified Asset, are to inure
from and after the Closing to GGO 


 


11

















 


(provided that as soon as a consent for the
contribution of an Identified Asset is obtained or the contractual impediment
is removed or no longer applies, the applicable Identified Asset shall be
promptly contributed to GGO), or (ii) to the extent the actions
contemplated by clause (i) are not possible without resulting in a
material and adverse effect on the Company and its Subsidiaries (as reasonably
determined by the Company in consultation with the GGO Representative),
contribute other assets, with the consent of 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 


 


12

















 


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 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 


 


13

















 


applicable in its jurisdiction of organization)
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.  The Company and
each of its Significant Subsidiaries has been duly qualified as a foreign
corporation or other form of entity for the transaction of business and, where
applicable, is in good standing under the Laws of each other jurisdiction in
which it owns, manages, operates or leases properties or conducts business so
as to require such qualification, except to the extent the failure to be so
qualified or, where applicable, be in good standing would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


SECTION 3.2               Corporate Power and
Authority.


 


(a)           Subject to the authorization
of the Bankruptcy Court, which shall be contained in the Confirmation Order,
and the expiration or waiver by the Bankruptcy Court of the 14-day period set
forth in Bankruptcy Rule 3020(e) following entry of the Confirmation
Order, the Company has the requisite power and authority to enter into, execute
and deliver this Agreement and to perform its obligations hereunder (except
with respect to (i) the issuance of the Warrants 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 


 


14

















 


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 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 


 


15

















 


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.


 


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


 


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


 


16

















 


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 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 


 


17

















 


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 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 


 


18

















 


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.


 


(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.


 


19

















 


(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 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.


 


20
















 


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 Company Properties are and
have been maintained in compliance with, any and all applicable federal, state,
local and foreign Laws relating to the 


 


21

















 


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 


 


22

















 


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


 


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


 


23

















 


(ii) to the Knowledge of the Company, as of the
date hereof, there are no activities or proceedings by any labor union or labor
organization to organize any employees of the Company or any of its Significant
Subsidiaries or to compel the Company or any of its Significant Subsidiaries to
bargain with any labor union or labor organization; and (iii), except as
would not, individually or in the aggregate, have a Material Adverse Effect,
there is no pending or, to the Knowledge of the Company, threatened material
labor strike, lock-out, walkout, work stoppage, slowdown, demonstration,
leafleting, picketing, boycott, work-to-rule campaign, sit-in, sick-out,
or similar form of organized labor disruption.


 


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


 


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


 


SECTION 3.19             No Broker’s Fees.  Other than pursuant to agreements (including
amendments thereto) by and between the Company and each of UBS Securities LLC
and Miller Buckfire & Co., LLC, or otherwise disclosed to 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 


 


24

















 


of the Company) in excess of $10,000,000 is
individually referred to herein as “Company Property” and collectively
referred to herein as the “Company Properties”).  All Company Properties, Non-Controlling
Properties and the Identified Assets are reflected in accordance with the
applicable rules and regulations of the SEC in the Annual Report in Form 10-K
as of, and for the year ended, December 31, 2009 (the “Most Recent
Statement”).


 


(b)           Except (i) for such
breach of this Section 3.20(b) as may be caused fully or
substantially by the third party member or partner in any Joint Venture,
without the Knowledge or consent of the Company or any of its Subsidiaries or (ii) as
would not individually or in the aggregate be reasonably expected to have a
Material Adverse Effect, the Company or one of its Subsidiaries owns good and
valid fee simple title or valid and enforceable leasehold interests (except
with respect to the Company’s right to reject any such ground lease as part of
a Bankruptcy plan of reorganization for the remaining Debtor entities and
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at Law or in equity)), as applicable, to
each of the Company Properties, in each case, free and clear of liens,
mortgages or deeds of trust, claims against title, charges that are liens or
other encumbrances on title, rights of way, restrictive covenants, declarations
or reservations of an interest in title (collectively, “Encumbrances”),
except for the following (collectively, the “Permitted Title Exceptions”):
(i) Encumbrances relating to the DIP Loan and to debt obligations reflected
in the Company’s financial statements and the notes thereto (including with
respect to debt obligations which are not consolidated) or otherwise disclosed
to 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 


 


25

















 


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


 


26

















 


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.


 


(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 


 


27

















 


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.


 


(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 


 


28

















 


(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 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).


 


29
















 


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.


 


(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



 


30

















 


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 


 


31

















 


Material Contract to which it is a party and which
shall survive the Bankruptcy Cases, except, in each case, as would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.  The Company has made
available to 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
0.714% 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 such member of the Purchaser Group, it being understood
that a member of the Purchaser Group 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.


 


32

















 


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


 


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


 


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


 


SECTION 4.4               No Conflict.  The execution and delivery of this Agreement
and the performance by Purchaser of its obligations hereunder and compliance by
Purchaser with all of the provisions hereof and the consummation of the
transactions contemplated herein (i) shall not conflict with, or result in
a breach or violation of, any of the terms or provisions of, or constitute a
default under, or result in the acceleration of, or the creation of any lien
under, or give rise to any termination right under, any material contract to
which Purchaser is a party, (ii) shall not result in any violation or
breach of any provisions of the organizational documents of Purchaser and (iii) shall
not conflict with or result in any violation of, or any termination or material
impairment of any rights 


 


33

















 


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 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 


 


34

















 


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 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.


 


35

















 


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 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 PSCM 17,142,857 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 


 


36

















 


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) 17,142,857 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.  The New Warrants (i) shall not vest or be exercisable upon issuance but, subject to
clause (ii) of this sentence, shall vest and become exercisable on the
date (the “New Warrant Vesting Date”) that is the earlier of (x) the
first Business Day occurring at least 211 days after the Effective Date, if the
Put Option has expired or terminated (in each case without exercise) or been
settled, and (y) the first day when both (1) at least 10,000,000
Repurchase Shares have been repurchased pursuant to Section 1.4(b) and
(2) the Put Option has terminated without exercise, and (ii) shall
expire and not vest if, after the Effective Date but prior to the New Warrant
Vesting Date, all (but not less than all) of the outstanding shares of New
Common Stock shall have been acquired by any single Person or “group” (within
the meaning of Section 13(d)(3) of the Exchange Act, and the rules and
regulations promulgated thereunder) of Persons, other than the Company, any
Initial Investor or any Affiliate of the Company or any Initial Investor, in a
full cash tender offer or in a full cash merger transaction that, in each case,
has been approved after the Effective Date by the Company Board.  PSCM, in its sole discretion, may designate
that some or all of the New Warrants or GGO Warrants be issued in the name of,
and delivered to, any member of the Purchaser Group in accordance with and
subject to the Designation Conditions.


 


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.


 


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, 


 


37

















 


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 exercisable for, or linked to the
performance of, New Common Stock) (other than (1) pursuant to the 


 


38

















 


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 or (6) as set forth on Section 5.9(a) of
the Company Disclosure Letter) (the “Proposed Securities”), the members
of the Purchaser Group 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 aggregate
amount of such Proposed Securities that the members of the Purchaser Group
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 aggregate number of shares of New Common Stock held
by the Purchaser Group on a Fully Diluted Basis as of the date of the Company’s
notice pursuant to Section 5.9(a)(ii) in respect of the
issuance of such Proposed Securities, and the denominator of which is the number
of shares of New Common Stock then outstanding on a Fully Diluted Basis.  For the avoidance of doubt, the actual amount
of securities to be sold or offered to the members of the Purchaser Group
pursuant to their exercise of the Subscription Right hereunder shall be
proportionally reduced if the aggregate amount of Proposed Securities sold or
offered is reduced.  Any offers and sales
pursuant to this Section 5.9 in the context of a registered public
offering shall be conditioned upon reasonably acceptable representations and
warranties of each applicable member of the Purchaser Group designated pursuant
to Section 5.9(a)(vi) regarding its status as the type of
offeree to whom a private sale can be made concurrently with a registered
public offering in compliance with applicable securities Laws.


 


39
















 


(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.  The applicable members of the Purchaser Group
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 the
applicable Subscription Right and as to the amount of Proposed Securities such
member of the Purchaser Group desires to purchase, up to the maximum amount
calculated pursuant to Section 5.9(a)(i).  In connection with an underwritten public
offering, such notice shall constitute a non-binding indication of interest to
purchase Proposed Securities at such a range of prices as the such member of
the Purchaser Group may specify and, with respect to other offerings, such
notice shall constitute a binding commitment of the  applicable member of such Purchaser Group to
purchase the amount of Proposed Securities so specified at the price and other terms
set forth in the Company’s notice to each Purchaser.  The failure of such member of the Purchaser
Group to so respond within such three (3) Business Day period shall be
deemed to be a waiver of the applicable Subscription Right under this Section 5.9
only with respect to the offering described in the applicable notice.  In connection with an underwritten public
offering or a private placement, the applicable member of the Purchaser Group
shall further enter into an agreement (in form and substance customary for
transactions of this type) to purchase the Proposed Securities to be acquired
contemporaneously with the execution of any underwriting agreement or purchase
agreement entered into with the Company, the underwriters or initial purchasers
of such underwritten public offering or private placement, and the failure of
such member of the Purchaser Group 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 member of the Purchaser Group exercises
its Subscription Right provided in this Section 5.9, the closing of
the purchase of the Proposed Securities with respect to which such right has
been exercised shall take place concurrently with the sale to the other
investors in the applicable offering, which period of time for the closing of
the purchase of the Proposed Securities with respect to which such right has
been exercised shall be extended for a maximum of 180 days in order to comply
with applicable Laws (including receipt of any applicable regulatory or
stockholder approvals).  Each of the
Company and the applicable members of the Purchaser Group shall use its
reasonable best efforts to secure any regulatory or stockholder approvals or
other 


 


40

















 


consents, and to comply with
any Law necessary in connection with the offer, sale and purchase of, such
Proposed Securities.


 


(iv)          Failure of Purchase.  In the event (A) the applicable member
of the Purchaser Group fails to exercise its Subscription Right provided in
this Section 5.9 within said three Business Day period, or (B) if
so exercised, such member of the Purchaser Group fails or is unable to
consummate such purchase within the 180 day period specified in Section 5.9(a)(iii),
without prejudice to other remedies, the Company shall thereafter be entitled
during the Additional Sale Period to sell the Proposed Securities not elected
to be purchased pursuant to this Section 5.9 or which the
applicable member of the Purchaser Group 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
each 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 members of the Purchaser Group 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 applicable member of the Purchaser Group shall cooperate in good faith
to facilitate the exercise of such member of the Purchaser Group’s Subscription
Right hereunder, including using reasonable efforts to secure any required
approvals or consents.


 


(vii)         Allocation Among Purchaser Group.  PSCM shall have the right as attorney-in-fact
of each member of the Purchaser Group to exercise all of the rights of the
members of the Purchaser Group hereunder and designate the members of such
Purchaser Group to receive any securities to be issued and the Company may rely
on any designations made by PSCM.  As a
condition to the Company’s obligations with respect to the exercise of a
Subscription Right by a member of the Purchaser Group not a party to this
Agreement, such member will agree to perform each obligation applicable to it
under this Section 5.9.


 


(viii)        General.  Notwithstanding anything herein to the
contrary, (A) if (1) a member of the Purchaser Group 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 


 


41

















 


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 member of the Purchaser Group 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 member
of the Purchaser Group in such offering, in which event the Company and such
member of the Purchaser Group shall promptly thereafter agree on a process
otherwise consistent with this Section 5.9 as would allow such
member of the Purchaser Group 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 the Purchaser
Group 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)(iii) would
materially impair the financing objective of 
an offering in respect of which 
the members of the Purchaser Group are entitled to Subscription Rights,
the Company shall be permitted by notice to each Purchaser to reduce the notice
period required under Section 5.9(a)(iii) (but not to less
than one (1) Business Day) to the minimum extent required to meet the
financing objective of such offering and the members of the Purchaser Group
shall have the right to either (x) exercise their 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 the applicable members of the
Purchaser Group 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 the Purchaser
Group 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 the applicable members of the Purchaser
Group as a result of a failure to receive regulatory or stockholder approval
therefor, the Company shall take such action or cause to be taken such other
action in order to place the Purchaser Group, 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 the applicable
member of the Purchaser Group was able to effectively exercise its Subscription
Rights hereunder, including, without limitation, at the option of such member, 


 


42

















 


issuing to such member of
the Purchaser Group another class of securities of the Company having terms to
be agreed by the Company and such member having a value at least equal to the
value per share of New Common Stock, in each case, as shall be necessary to
enable the Purchaser Group to maintain its aggregate 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.


 


(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             Company Board of Directors.


 


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


 


(b)           GGO Board of Directors.


 


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


 


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


 


43

















 


(1)           That following the Closing,
GGO shall nominate as part of its slate of directors and use its reasonable
best efforts to have them elected to the GGO Board (including through the
solicitation of proxies for such person to the same extent as it does for any
of its other nominees to the GGO Board) (subject to applicable Law and stock
exchange rules (provided that the Purchaser GGO Board Designees need not
be “independent” under the applicable rules of the applicable stock
exchange or the SEC)) (x) so long as the Purchaser Group has at least a 17.5%
Fully Diluted GGO Economic Interest, three (3) Purchaser Board Designees,
and (y) otherwise, so long as the Purchaser Group beneficially owns
(directly or indirectly) in the aggregate at least 10% of the shares of GGO
Common Stock on a Fully Diluted Basis, two (2) Purchaser Board
Designees.  For the avoidance of doubt,
at and following such time as the Purchaser Group beneficially owns (directly
or indirectly) in the aggregate less than 10% of the shares of GGO Common Stock
on a Fully Diluted Basis, PSCM shall no longer have the right to designate
directors for election to the GGO Board.


 


(2)           That following the Closing,
and subject to applicable Law and stock exchange rules, there shall be
proportional representation by Purchaser GGO Board Designees on any committee
of the GGO Board, except for special committees established for potential
conflict of interest situations, and except that only Purchaser GGO Board
Designees who qualify under the applicable rules of the applicable stock
exchange or the SEC may serve on committees where such qualification is
required.  If at any time the number of
Purchaser GGO Board Designees serving on the GGO Board exceeds the number of
Purchaser GGO Board Designees that PSCM is then otherwise entitled to designate
as a result of a decrease in the percentage of shares of GGO Common Stock
beneficially owned by the Purchaser Group, such Purchaser Group shall, to the
extent it is within such Purchaser Group’s control, use commercially reasonable
efforts to cause any such additional Purchaser GGO 


 


44

















 


Board Designees to offer to
resign such that the number of Purchaser GGO Board Designees serving on the GGO
Board after giving effect to such resignation does not exceed the number of
Purchaser GGO Board Designees that PSCM is entitled to designate for election
to the GGO Board.


 


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


 


(4)           That (A) each Purchaser
GGO Board Designee shall be entitled to the same compensation and same
indemnification in connection with his or her role as a director as the members
of the GGO Board, and each Purchaser GGO Board Designee shall be entitled to
reimbursement for documented, reasonable out-of-pocket expenses incurred in
attending meetings of the GGO Board or any committees thereof, to the same
extent as other members of the GGO Board, (B) GGO shall notify each
Purchaser GGO Board Designee of all regular and special meetings of the GGO
Board and shall notify the Purchaser GGO Board Designee of all regular and
special meetings of any committee of the GGO Board of which such Purchaser GGO
Board Designee is a member, and (C) GGO shall provide each Purchaser GGO
Board Designee with copies of all notices, minutes, consents and other
materials provided to all other members of the GGO Board concurrently as such
materials are provided 


 


45

















 


to the other members
(except, for the avoidance of doubt, as are provided to members of committees
of which such Purchaser GGO Board Designee is not a member).


 


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


 


SECTION 5.11             Notification of Certain
Matters.


 


(a)           The Company shall (i) give
prompt written notice to 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 


 


46

















 


such party to invoke or rely on, or effect the
satisfaction of, the conditions to the obligations of such party to consummate
the transactions contemplated by this Agreement set forth in Article VII
or Article VIII, as applicable.


 


SECTION 5.12             Further Assurances.  From and after the Closing, the Company shall
(and shall cause each of its Subsidiaries to) execute and deliver, or cause to
be executed and delivered, such further instruments or documents or take such
other action and cause entities controlled by them to take such action as may
be reasonably necessary (or as reasonably requested by 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 0.714% 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
0.714% 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 


 


47

















 


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 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 Non-Control Agreement.


 


(d)           In the event GGO adopts a
rights plan analogous to the Rights Agreement on or prior to the Closing, the
Plan shall provide that (i) GGO’s Rights Agreement shall be inapplicable
to this Agreement and the transactions contemplated hereby, (ii) 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, the GGO Warrants or as
otherwise contemplated by the GGO Non-Control Agreement.


 


(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 


 


48

















 


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.


 


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


 


49
















 


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) 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 


 


50

















 


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, if applicable, and (z) the Bridge Note Maturity Date, 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.


 


(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 


 


51

















 


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 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 


 


52

















 


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 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 


 


53

















 


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 


 


54

















 


consented to by the Company) (provided that (x) the
Company is not in material breach of this Agreement and (y) the terms of
the Plan are and remain consistent with the Plan Summary Term Sheet and this
Agreement, and are otherwise in form and substance satisfactory to 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 


 


55

















 


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 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.


 


Each
Purchaser 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, any Shares, New Common Stock or New Warrants in
violation of the Non-Control Agreement or GGO Shares or GGO Warrants in
violation of the GGO Non-Control Agreement.


 


For
the avoidance of doubt, the Purchaser Group’s rights to designate for
nomination the Purchaser Board Designee and Purchaser GGO Board Designees
pursuant 


 


56

















 


to
Section 5.10 and 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, each Purchaser and the other members of the Purchaser Group
will enter into a customary ‘lock-up’ agreement with respect to third-party
sales of New Common Stock for a period of time not to exceed 120 days to the
extent reasonably requested by the managing underwriter in connection with such
offering.


 


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, each Purchaser
shall enter into (1) the Non-Control Agreement with the Company and (2) the
GGO Non-Control Agreement with GGO.


 


SECTION 6.8               [Intentionally Omitted.]


 


SECTION 6.9               Additional Backstops.


 


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


 


57

















 


or such lesser amount as the Company may determine
(the “GGP Backstop Rights Offering Amount”).  In connection with the GGP Backstop Rights
Offering:


 


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


 


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


 


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


 


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


 


(v)           the Backstop Investors will
receive aggregate compensation in the form of New Common Stock (whether or not
the 


 


58

















 


backstop commitments are utilized)
with a value equal to three percent (3%) of the GGP Backstop Rights Offering
Amount; and


 


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


 


(b)           The Company shall give each
Backstop Investor written notice of its estimate of the amount the Backstop
Investors will be required to fund pursuant to Section 6.9(a) no
later than six (6) Business Days prior to the Closing Date.  If each Backstop Investor agrees, the
Backstop Investors shall have two (2) Business Days from the date of
receipt of such notice to notify the Company in writing that they intend to
elect to purchase from the Company in lieu of all or part of the proceeds to be
provided by the GGP Backstop Rights Offering its pro rata portion of senior
subordinated unsecured notes and/or preferred stock instruments (at the
election of the Backstop Investors) on market terms except as provided below
(the “Bridge Securities”).  The
Bridge Securities would have a final maturity date, in the case of a note, and
a mandatory redemption date, in the case of preferred stock, on the 270th day
after the Effective Date, would not require any mandatory interim cash
distributions except as contemplated in (i) below, and would yield to the
Company on the Closing Date cash proceeds (net of OID) of at least the proceeds
from the GGP Backstop Rights Offering that such Bridge Securities are intended
to replace.  The Bridge Securities would
be subordinated in right of payment to any New Debt, would have market coupon
and fees, would allow for any interest due prior to maturity to be “paid in
kind” (rather than paid in cash) at the election of the Company, would be
prepayable, without any prepayment penalty or prepayment premium, on a pro rata
basis at any time, and would otherwise be on market terms (determined such that
fair value of the Bridge Securities as of the Effective Date is equal to par
minus OID).


 


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


 


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


 


59

















 


sold to the Backstop
Investors, any New Common Stock sold in the GGP Backstop Rights Offering and
the New Debt); and


 


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


 


(c)           If the Company requests 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, such Initial
Investor shall be released from its obligations under its applicable Investment
Agreement.


 


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


 


60
















 


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


 


ARTICLE VII


 


CONDITIONS TO THE
OBLIGATIONS OF PURCHASER


 


SECTION 7.1               Conditions to the
Obligations of Purchaser.  The
obligation of 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 


 


61

















 


correct (except for de minimis
inaccuracies) at and as of the Closing Date as if made at and as of the Closing
Date (except for representations and warranties made as of a specific date,
which shall be true and correct (except for de minimis
inaccuracies) only as of such specific date) and (iii) the other
representations and warranties of the Company contained in this Agreement,
disregarding all qualifications and exceptions contained therein relating to “materiality”
or “Material Adverse Effect”, shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date (except for
representations and warranties made as of a specified date, which shall be true
and correct only as of the specified date), except for such failures to be true
and correct that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect (it being agreed that the condition
in this subclause (iii) as it relates to undisclosed liabilities of the
Company and its Subsidiaries comprised of Indebtedness shall be deemed to be
satisfied if the condition in Section 7.1(p) is
satisfied.  In addition, for purposes of this Section 7.1(c) as it
relates to Section 3.20(b) of this Agreement, the reference to
“DIP Loan” in clause (i) of such Section 3.20(b) shall be
deemed to refer to that certain Senior Secured Debtor in Possession Credit,
Security and Guaranty Agreement, dated as of July 23, 2010, by and among
the Company, GGP Limited Partnership, the lenders party thereto, Barclays
Capital, as the Sole Arranger, Barclays Bank PLC, as the Administrative Agent
and Collateral Agent, and the guarantors party thereto (the “New DIP
Agreement”).  The Company shall have complied in all
material respects with all of its obligations under this Agreement, provided
that with respect to its obligations under Section 5.4, 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 


 


62

















 


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.


 


(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 


 


63

















 


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(c) 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 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.


 


64

















 


(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
Reinstated Amounts over (B) $1,500,000,000.  For the avoidance of doubt, the reserve shall
(i) include (a) the Contingent and Disputed Debt Claims, and (b) an
estimate of the cash component of a potential dividend to be issued by the
Company as a result of the spin-off of GGO, and (ii) exclude any amounts
to be paid in Shares.  In  addition, to the extent that there is any
availability under the Debt Cap, then such amount shall be included in
Proportionally Consolidated Unrestricted Cash as if the Company had such amount
in cash.


 


(o)           Board of Directors.  Each of the persons designated by PSCM
pursuant to Section 5.10 shall have been duly appointed to each of
the Company Board and the GGO Board.


 


(p)           Debt of the Company.  Immediately following the Closing after
giving effect to the Plan, the aggregate outstanding Proportionally
Consolidated Debt shall not exceed $22,250,000,000  in the aggregate minus (i) the amount of
Proportionally Consolidated Debt attributable to assets sold, returned,
abandoned, conveyed, transferred or otherwise divested during the period
between the date of this Agreement through the Closing and minus (ii) the
excess, if any, of $1,500,000,000 over the aggregate principal amount of new
Unsecured Indebtedness incurred after the date of this Agreement and on or
prior to the Closing Date for cash (“New Debt”) and the aggregate
principal amount of any Debt under the Rouse Bonds or the Exchangeable Notes
that is reinstated or issued under the Plan (such amounts reinstated or issued,
the “Reinstated Amounts”) minus (iii) the amount of Proportionally
Consolidated Debt attributable to Identified Assets contributed to GGO pursuant
to Section 2.1(a), minus (iv) the amount of Proportionally
Consolidated Debt attributable to assets other than Identified Assets contributed
to GGO pursuant to Section 2.1(a) minus (v) the principal
and/or liquidation preference of the TRUPS and the UPREIT Units not reinstated,
plus (vi) in the event the Closing occurs prior to September 30,
2010, the amount of scheduled amortization on Proportionally Consolidated Debt
(other than Corporate Level Debt) 


 


65

















 


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 issued pursuant to Section 1.4 (and the parties agree
that such Bridge Notes shall not be included in the calculation of Closing Date
Net Debt or Closing Date Net Debt W/O Reinstatement Adjustment) (the aggregate
amount calculated pursuant to this Section 7.1(p), the “Debt Cap”).


 


(q)           Outstanding Common Stock.  The number of issued and outstanding shares
of New Common Stock on a Fully Diluted Basis (including the Shares) shall not
exceed the Share Cap Number.  The “Share
Cap Number” means 1,104,683,256 plus the number of shares (if any) issued
to settle or otherwise satisfy Hughes Heirs Obligations, plus up to 65,000,000
shares of New Common Stock issued in Liquidity Equity Issuances, plus
17,142,857 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 Fairholme Purchasers pursuant to the
Fairholme 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, the difference between (i) the
number of shares of New Common Stock issued to existing holders of Common Stock
and the Backstop Investors, in each case, pursuant to Section 6.9
minus (ii) 50,000,000 shares of New Common Stock, minus the number of Put
Shares (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”), 


 


66

















 


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 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 


 


67

















 


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 and the Backstop
Investors, in each case, pursuant to Section 6.9);


 


(vii)         none of the Company
Properties or Identified Assets shall have been mortgaged, or pledged, nor
shall the owner or lessee thereof have granted a lien, mortgage, pledge,
security interest, charge, claim or other Encumbrance relating to debt
obligations of any kind or nature on, or otherwise encumbered, any Company
Property or Identified Assets except in the ordinary course of business
consistent with past practice, other than encumbrances of Company Properties or
Identified Assets of Debtors in connection with (A) a restructuring of
existing indebtedness for borrowed money related to any such 


 


68

















 


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.


 


(i)            The Company shall have
entered into the Non-Control Agreement with each Purchaser.  The Non-Control 


 


69

















 


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.


 


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


 


(u)           Issuance or Sale of Common
Stock.  Neither the Company nor any of
its Subsidiaries shall have issued or sold any shares of Common Stock (or
securities, warrants or options that are convertible into or exchangeable or
exercisable for, or linked to the performance of, Common Stock) (other than (A) pursuant
to the Equity Exchange, (B) the issuance of shares pursuant to the
exercise of employee stock options issued pursuant to the Company Option Plans,
(C) as set forth on Section 7.1(u) of the Company
Disclosure Letter or (D) the issuance of shares to existing holders of
Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9),
unless (1) the purchase price (or, in the case of securities that are
convertible into or exchangeable or exercisable for, or linked to the
performance of, Common Stock, the conversion, exchange or exercise price) shall
not be less than $10.00 per share (net of all underwriting and other discounts,
fees and any other compensation; provided, that for purposes hereof,
payments to the Purchasers or the Fairholme Purchasers in accordance with Section 1.4
of this Agreement or the Fairholme 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 Pershing Purchaser Group, the members of the Fairholme 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 


 


70

















 


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.


 


(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, 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).


 


(y)           Put Shares.  Subject to Section 1.4(c), if the
Company has elected to designate Put Shares
pursuant to Section 1.4(b), the Company and each of the Purchasers
shall have entered into the Bridge Notes on terms mutually satisfactory to each
party, effective as of the Effective Date, and approved by the Bankruptcy Court
pursuant to its Confirmation Order.


 


71
















 


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 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.


 


72

















 


(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.


 


(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 


 


73

















 


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


 


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


 


(n)           Collateral.  If the Company has elected to designate Put Shares pursuant to Section 1.4(b), collateral arrangements
pursuant to Section 1.4(c)(viii) shall have been entered into
on terms satisfactory to the Company and approved by the Bankruptcy Court.


 


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, 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 


 


74

















 


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 


 


75

















 


to be authorized for
issuance on a U.S. national securities exchange;


 


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


 


76

















 


with Section 1.4
of this Agreement or the Fairholme Agreement, respectively, shall not be
considered a discount, fee or other compensation) of Common Stock or New Common
Stock or converts any claim against any of the Debtors into New Common Stock at
a conversion price less than $10.00 per share of Common Stock or New Common
Stock (in each case, other than pursuant to (A) the exercise, exchange or
conversion of Share Equivalents of the Company existing on the date of this
Agreement in accordance with the terms thereof as of the date of this
Agreement, (B) the Equity Exchange, (C) the issuance of shares upon
the exercise of employee stock options issued pursuant to the Company Option
Plans, (D) the issuance of shares as set forth on Section 7.1(u) of
the Company Disclosure Letter, or (E) the issuance of shares to existing
holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9;


 


(viii)        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 


 


77

















 


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 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.


 


78

















 


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.


 


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


 


(c)           “Affiliate” of any
particular Person means any other Person controlling, controlled by or under
common control with such particular Person. 
For the purposes of this definition, “control” means the possession,
directly or indirectly, of the 


 


79

















 


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.


 


(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 


 


80

















 


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 Fairholme Purchasers on the Effective Date in accordance with Section 1.4
of this Agreement and the Fairholme 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.


 


81
















 


(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, 


 


82

















 


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


 


83

















 


(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.


 


(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:


 


84

















 


(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 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 


 


85

















 


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


 


(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)         [Intentionally Omitted.]


 


(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 


 


86

















 


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)           “Fully Diluted GGO
Economic Interest” means, for the Purchaser Group with respect to GGO
Common Stock at any time, a percentage equal to the quotient of (i) the
aggregate number of shares of GGO Common Stock held in the aggregate by the
Purchaser Group, assuming the exercise of all outstanding Share Equivalents
held by them (without regard to any restrictions or conditions with respect to
the exercisability of such Share Equivalents), and the aggregate notional
number of shares of GGO Common Stock referenced in any physically-settled or
financially-settled equity derivative that the Purchaser Group counterparty has
certified to the Company provides the Purchaser Group with the benefit of
substantially similar cash flows as would direct ownership, divided by
(ii) the aggregate outstanding number of shares of GGO Common Stock on a
Fully Diluted Basis.


 


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


 


(hh)         “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.


 


(ii)           “GGO Non-Control
Agreement” means an agreement with respect to GGO as attached hereto as Exhibit M.


 


(jj)           “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.


 


(kk)         “GGO Pro Rata Share”
means, with respect to each Purchaser, the percentage designated by PSCM by
written notice to the Company pursuant to Section 1.1(e).


 


87

















 


(ll)           “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
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.


 


(mm)       [Intentionally Omitted.]


 


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


 


(oo)         [Intentionally Omitted.]


 


(pp)         “GGP Pro Rata Share”
means, with respect to each Purchaser, the percentage designated by PSCM by
written notice to the Company pursuant to Section 1.1(e).


 


(qq)         “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.


 


(rr)           “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.


 


88

















 


(ss)         “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.


 


(tt)           “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 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.


 


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


 


(vv)         “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.


 


(ww)       “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.


 


(xx)          “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.


 


89

















 


(yy)         “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 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.


 


90

















 


(zz)          “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.


 


(aaa)       “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.


 


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


 


(ccc)       [Intentionally Omitted.]


 


(ddd)      “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).


 


(eee)       “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.


 


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


 


(ggg)      “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(ggg),
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 


 


91

















 


correlative thereto. 
For purposes of this Section 12.1(ggg), 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.


 


(hhh)      “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, if applicable, and (z) the Bridge Note
Maturity Date, 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 Fairholme Purchasers in
accordance with Section 1.4 of this Agreement or the Fairholme
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.


 


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


 


(jjj)          “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.


 


92
















 


(kkk)       “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.


 


(lll)          “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 Fairholme Purchasers in accordance
with Section 1.4 of this Agreement or the Fairholme 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 Fairholme Agreement
(in each case, as defined herein or therein as applicable).


 


(mmm)    “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.


 


(nnn)      “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.


 


(ooo)      “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.


 


(ppp)      “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, 


 


93

















 


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.


 


(qqq)      “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.


 


(rrr)         “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.


 


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


 


(ttt)         [Intentionally Omitted.]


 


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


 


(vvv)      “Rights Agreement”
means that certain Rights Agreement, dated as of November 18, 1998, by and
between the Company and BNY Mellon Shareowner 


 


94

















 


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.


 


(www)    “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.


 


(xxx)        “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.


 


(yyy)      “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.


 


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


 


(aaaa)     “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.


 


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


 


(cccc)     “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.


 


(dddd)    “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 


 


95

















 


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.


 


(eeee)     “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.


 


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


 


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


 


(hhhh)    “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.”.


 


(iiii)         “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.


 


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


 


96

















 


ARTICLE XIII


 


MISCELLANEOUS


 


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


 


	
   

  	
  (a)

  	
  If to any Purchaser (which shall constitute notice to each
  Purchaser), to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pershing
  Square Capital Management, L.P.

  
	
   

  	
   

  	
  888
  Seventh Avenue, 42nd Floor

  
	
   

  	
   

  	
  New
  York, New York 10019

  
	
   

  	
   

  	
  Attention:

  	
  William
  A. Ackman

  
	
   

  	
   

  	
   

  	
  Roy
  J. Katzovicz

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)
  286-1133

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
   

  	
  (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

  



 


97

















 


	
   

  	
   

  	
  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.

  
	
   

  	
   

  	
   

  	
  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
8,287,895 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  714,286 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, (iii) the
Purchasers’ right to receive 7.634% of the Purchasers’ compensation in the form
of New Common Stock with respect to the GGP Backstop Rights Offering and other
rights of the Purchasers’ set forth in Section 6.9(a) and Section 6.9(b) in
the event the Purchasers designate Blackstone as one of their designees to
subscribe for New Common Stock in such GGP Backstop Rights Offering, and (iv) 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 


 


98

















 


Price”) and the purchase price
for shares received by Blackstone pursuant to clauses (iii) and (iv) above,
(B) agreeing in a writing reasonably satisfactory to, and for the benefit
of, the Company that the Blackstone Assigned Securities shall be subject to
such transfer restrictions/lock-ups as contemplated by Section 6.4 of this
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 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) 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) shall
include Blackstone and its securities to the same extent as it applies to the
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 


 


99

















 


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 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.


 


100

















 


(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.


 


(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 PSCM 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.


 


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 or the Put
Option, as applicable, the Company or GGO shall declare or make a
dividend or 


 


101

















 


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 issued to the other Initial Investors 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, 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.


 


102

















 


(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]


 


103

















 


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.


 


	
   

  	
  PERSHING
  SQUARE CAPITAL MANAGEMENT, L.P.

  
	
   

  	
   

  	
  On behalf of each of the Purchasers

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: PS Management GP, LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ William A. Ackman

  
	
   

  	
   

  	
  Name:

  	
  William A. Ackman

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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]