Exhibit 10.1

 

STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of February 10, 2014 (the “Signing Date”), by and among General Growth Properties, Inc., a Delaware corporation (“GGP”), GGP Limited Partnership, a Delaware limited partnership (“GGPLP” or the “Purchaser”), and each of the legal entities set forth on Exhibit A (each, a “Seller” and collectively, the “Sellers”).

 

RECITALS

 

WHEREAS, GGP was organized in July 2010 and is a self-administered and self-managed real estate investment trust;

 

WHEREAS, each Seller desires to sell, and Purchaser desires to purchase, the number of shares of GGP common stock set forth opposite such Seller’s name on Exhibit A (collectively, the “Sellers’ Shares”) on the terms and subject to the conditions set forth herein.

 

AGREEMENT

 

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

 

CERTAIN DEFINITIONS AND CONSTRUCTION

 

Section 1.1                                    Certain Definitions.  As used in this Agreement, the following terms have the meanings set forth below:

 

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

 

“Business Day” means any day, other than a Saturday or Sunday, on which commercial banks are not required or authorized to close in New York, New York or Chicago, Illinois.

 

“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral.

 

“Encumbrance” means any lien, pledge, charge, encumbrance, security interest, option, mortgage, easement, restriction (including restrictive covenants or deed restrictions in connection with environmental or remedial obligations), lease, sublease, right of way, right of refusal or offer, claim, restriction on transfer, restriction on voting or other similar restriction, including any voting agreement or proxy.

 











 

“Governmental Entity” means any federal, state, local or foreign government or any court, administrative body, agency or commission or other governmental or quasi-governmental entity, authority or instrumentality, domestic or foreign, with competent jurisdiction.

 

“Law” means any law, statute, ordinance, rule, regulation, directive, code or Order enacted, issued, promulgated, enforced or entered by any Governmental Entity.

 

“Person” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a Governmental Entity, a trust or other entity or organization.

 

“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity.

 

Section 1.2                                    Additional Definitions.

 

	
Agreement
    	
 
    	
Preamble
    
	
Bankruptcy   and Equity Limitation
    	
 
    	
Section 3.1(c)
    
	
Chosen   Courts
    	
 
    	
Section 6.5
    
	
Closing
    	
 
    	
Section 2.2
    
	
Closing   Date
    	
 
    	
Section 2.2
    
	
Company   Board
    	
 
    	
Recitals
    
	
GGP
    	
 
    	
Preamble
    
	
GGP   Parties
    	
 
    	
Section 3.1(j)(ii)
    
	
GGPLP
    	
 
    	
Preamble
    
	
Order
    	
 
    	
Section 5.1(a)
    
	
Purchase   Price
    	
 
    	
Section 2.1
    
	
Purchaser
    	
 
    	
Preamble
    
	
Seller
    	
 
    	
Preamble
    
	
Sellers’   Shares
    	
 
    	
Recitals
    
	
Signing   Date
    	
 
    	
Preamble
    
	
Transaction
    	
 
    	
Section 2.1
    


 

Section 1.3                                    Headings.  The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

Section 1.4                                    Construction.  Unless the context otherwise requires, as used in this Agreement: (i) “or” is not exclusive; (ii) “including” and its variants mean “including, without limitation” and its variants; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in visual electronic form; (v) words of one gender shall be construed to apply to each gender; (vi) the term “Section” refers to the specified Section of this Agreement; (vii) the terms “Dollars” and “$” mean United States Dollars; and (viii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends and such phrase shall not mean simply “if”.

 

2











 

Section 1.5                                    Joint Drafting.  The parties hereto have been represented by counsel in the negotiations and preparation of this Agreement; therefore, this Agreement will be deemed to be drafted by each of the parties hereto, and no rule of construction will be invoked respecting the authorship of this Agreement.

 

ARTICLE II

 

THE TRANSACTION; THE CLOSING

 

Section 2.1                                    The Transaction.  On the terms and subject to the conditions set forth herein, each Seller agrees to sell, and Purchaser agrees to purchase, for an aggregate cash purchase price of $555,800,553.84 (the “Purchase Price”) all of the Sellers’ Shares (the “Transaction”).

 

Section 2.2                                    The Closing.  Unless otherwise mutually agreed in writing among Purchaser and the Sellers, the closing of the Transaction (the “Closing”) shall take place at the offices of Purchaser, 110 North Wacker Drive, Chicago, Illinois, or at such other place or through such other means as the parties may agree, on the date hereof, subject to satisfaction of the conditions in Article V hereof (the “Closing Date”).

 

Section 2.3                                    Deliveries by Purchaser.  At the Closing, Purchaser shall deliver, or cause to be delivered, to the Sellers the Purchase Price in immediately available funds by wire transfer to one or more bank accounts designated by the Sellers.

 

Section 2.4                                    Deliveries by each Seller.  At or prior to the Closing, the Sellers shall deliver, or cause to be delivered, to Purchaser all of the Sellers’ Shares.  In addition, on the Closing Date, Pershing Square, L.P. and Pershing Square II, L.P. shall each deliver a certificate of non-foreign status, dated as of the Closing Date, in the form attached as Exhibit B.

 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES

 

Section 3.1                                    Representations and Warranties of each Seller.  Each Seller jointly and severally represents and warrants to Purchaser as to itself and each other Seller:

 

(a)                                 Organization.  Each Seller (i) is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, (ii) has been duly qualified as a foreign corporation or other form of entity for the transaction of business, and (iii) 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 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 Transaction.

 

(b)                                 Power and Authority.  Each Seller has the requisite power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder and has

 

3











 

taken all necessary action required for the due authorization, execution, delivery and performance by it of this Agreement.

 

(c)                                  Execution and Delivery.  This Agreement has been duly and validly executed and delivered by each Seller and constitutes its valid and binding obligation, enforceable against each Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting generally the enforcement of creditors’ interests and (ii) the availability of equitable remedies (whether in a Proceeding in equity or at Law) (collectively, the “Bankruptcy and Equity Limitation”).

 

(d)                                 Ownership of Shares.  Exhibit A sets forth a complete and correct schedule of the beneficial ownership of the Sellers’ Shares as of the date of this Agreement. Each Seller holds and has good and valid title to the Sellers’ Shares to be purchased by Purchaser from such Seller, which Sellers’ Shares shall be, at the Closing giving effect to the Closing, free and clear of all Encumbrances. Assuming Purchaser (i) has the requisite power and authority to be the lawful owner of the Sellers’ Shares and (ii) is not subject to any Encumbrance or Contract prior to the Closing that would restrict or prohibit such Purchaser from taking good and valid title to the Sellers’ Shares free and clear of all Encumbrances, at the Closing good and valid title to such Shares will pass to Purchaser, free and clear of all Encumbrances.

 

(e)                                  No Conflict.  The execution and delivery of this Agreement and the performance by each Seller of its obligations hereunder and compliance by each Seller with all of the provisions hereof and the consummation of the Transaction (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 Encumbrance under, or give rise to any termination right under, any material Contract to which any Seller is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of any Seller and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over any Seller or any of Seller’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 any Seller to consummate the Transaction.

 

(f)                                   Contracts.  There is no existing option, warrant, call, right or Contract of any character to which any Seller is a party requiring, and there are no securities outstanding which upon conversion or exchange would require, the sale or transfer of (or the making of an offer to sell or transfer of) the Sellers’ Shares.  No Seller is a party to any Contract with respect to the voting, redemption, sale, transfer or other disposition of the Sellers’ Shares, except for this Agreement.

 

(g)                                  Consents and Approvals.  No consent, approval, Order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over any Seller is required in connection with the execution and delivery by such Seller of this Agreement or the consummation of the Transaction, except such consents, approvals, Orders, authorizations,

 

4











 

registration or qualification as would not reasonably be expected to materially and adversely affect the ability of each Seller to perform its obligations under this Agreement.

 

(h)                                 Legal Proceedings.  As of the Signing Date, there are no legal, governmental or regulatory Proceedings pending or, to the knowledge of any Seller, threatened against any Seller which, individually or in the aggregate, if determined adversely to a Seller, would materially and adversely affect the ability of such Seller to perform its obligations under this Agreement.

 

(i)                                     No Broker’s Fees.  No Seller is a party to any Contract, agreement or understanding with any Person that would give rise to a valid claim against Purchaser for an investment banking fee, commission, finder’s fee or like payment in connection with the Transaction.

 

(j)                                    Sophistication of the Seller.

 

(i)                                     Each Seller has such knowledge, sophistication and experience in financial and business matters that such Seller is capable of evaluating the merits and risks of entering into this Agreement and consummating the Transaction.

 

(ii)                                  Each Seller has relied solely on its own independent investigation in valuing such Seller’s Sellers’ Shares and determining to proceed with the Transaction.  No Seller has relied on any assertions made by GGP, GGPLP, any of their Affiliates, or any Person representing or acting on behalf of GGP, GGPLP or any of their Affiliates (collectively, the “GGP Parties”) regarding GGP, GGPLP, such Seller’s Sellers’ Shares or the valuation thereof.  Each Seller understands the disadvantage to which it is subject on account of the disparity of information as between such Seller and the GGP Parties.

 

(iii)                               Each Seller has or has access to all information that it believes to be necessary, sufficient or appropriate in connection with the Transaction.  Each Seller has previously undertaken such independent investigation of GGP as in its judgment is appropriate to make an informed decision with respect to the Transaction, and each Seller has made its own decision to consummate the Transaction based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary and without reliance on any express or implied representation or warranty of any of the GGP Parties.

 

(iv)                              Each Seller understands that the GGP Parties have and may come into possession of material non-public information with respect to GGP not known to such Seller.  Each Seller acknowledges that any such material non-public information not known to such Seller may impact the value of GGP and such Seller’s Sellers’ Shares or may otherwise be material to such Seller’s decision to enter into this Agreement.  Each Seller acknowledges that it is proceeding with the sale of such Seller’s Sellers’ Shares to Purchaser knowingly and voluntarily, without access to or the benefit of such information.  Each Seller hereby waives any right to rescind or invalidate the sale of the Sellers’ Shares to Purchaser or to seek any damages or remuneration from Purchaser

 

5











 

based on Purchaser’s possession of any information regarding GGP or the lack of possession of any information regarding GGP by such Seller.

 

(v)                                 Each Seller understands and acknowledges that, except as otherwise set forth in Section 3.2, the GGP Parties make no representation or warranty to it, express or implied, with respect to GGP, the Sellers’ Shares, the Transaction or the accuracy, completeness or adequacy of any publicly available information regarding GGP or its Affiliates, nor shall any of the GGP Parties be liable for any loss or damages of any kind resulting from the use of any information (other than the representations and warranties set forth in Section 3.2) supplied to such Seller.

 

(vi)                              Each Seller hereby expressly releases the GGP Parties and their respective officers, employees, agents and controlling persons from any and all liabilities arising from or in connection with the disclosure of any information in connection with the Transaction (including, without limitation, with respect to the accuracy of information or the failure to disclose information), and each Seller hereby agrees to make no claim (and it hereby waives and releases all claims that it may otherwise have) against the GGP Parties and their respective officers, employees, agents and controlling persons from or in connection with the disclosure of any information in connection with the Transaction (including, without limitation, with respect to the accuracy of information or the failure to disclose information) whether arising before, in connection with or after the date of this Agreement.  Each Seller hereby agrees that the release and waiver contained in this paragraph is unconditional and irrevocable.

 

(k)                                 Each Seller acknowledges that GGP is relying on the representations and agreements set forth in this Section 3.1 in engaging in the Transaction, and would not engage in the Transaction in the absence of such representations and agreements.

 

(l)                                     Non-U.S. Entities. Each of PSRH, Inc. and Pershing Square Holdings, Ltd. does not own and has not owned during the time period specified in Section 897(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), warrants and shares representing more than 5 percent of the outstanding shares of GGP (such outstanding shares to be determined in reliance on the accuracy of public filings of GGP), applying for this purpose the constructive ownership rules specified in Section 897(c)(6) of the Code.

 

(m)                             No Other Representations or Warranties.  Except for the representations and warranties made by the Sellers in this Section 3.1, neither any Seller nor any other Person on behalf of any Seller makes any representation or warranty with respect to any Seller or any of their respective assets, liabilities, condition (financial or otherwise) or prospects.

 

(n)                                 Acknowledgement.  Each Seller acknowledges that (i) neither GGP, Purchaser nor any Person on behalf of GGP or Purchaser is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Purchaser in Section 3.2 and (ii) the Sellers have 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 Section 3.2.

 

6











 

Section 3.2                                    Representations and Warranties of GGP and Purchaser.  GGP and Purchaser represent and warrant to the Sellers:

 

(a)                                 Organization.  Each of GGP and Purchaser is duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization.  Each of GGP and 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 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 Transaction.

 

(b)                                 Power and Authority.  Each of GGP and 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.

 

(c)                                  Execution and Delivery.  This Agreement has been duly and validly executed and delivered by each of GGP and Purchaser and constitutes its valid and binding obligation, enforceable against each of GGP and Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Limitation.

 

(d)                                 No Conflict.  The execution and delivery of this Agreement and the performance by each of GGP and Purchaser of its obligations hereunder and compliance by each of GGP and Purchaser with all of the provisions hereof and the consummation of the Transaction (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 Encumbrance under, or give rise to any termination right under, any material contract to which either of GGP or Purchaser is a party, (ii) shall not result in any violation or breach of any provisions of the organizational documents of either GGP or Purchaser and (iii) shall not conflict with or result in any violation of, or any termination or material impairment of any rights under, any statute or any license, authorization, Order, rule or regulation of any Governmental Entity having jurisdiction over either of GGP or Purchaser or their 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 GGP or Purchaser to consummate the Transaction.

 

(e)                                  Consents and Approvals.  No consent, approval, order, authorization, registration or qualification of or with any Governmental Entity having jurisdiction over GGP or Purchaser is required in connection with the execution and delivery by GGP and Purchaser of this Agreement or the consummation of the Transaction, 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.

 

(f)                                   Legal Proceedings.  As of the Signing Date, there are no legal, governmental or regulatory Proceedings pending or, to the knowledge of GGP or Purchaser, threatened against GGP or Purchaser, respectively, which, individually or in the aggregate, if

 

7











 

determined adversely to GGP or Purchaser, would materially and adversely affect the ability of GGP or Purchaser to perform its obligations under this Agreement.

 

(g)                                  No Broker’s Fees.  Neither GGP nor Purchaser is a party to any contract, agreement or understanding with any Person that would give rise to a valid claim against any Seller for an investment banking fee, commission, finder’s fee or like payment in connection with the Transaction.

 

(h)                                 No Other Representations or Warranties.  Except for the representations and warranties made by GGP and Purchaser in this Section 3.2, neither GGP, Purchaser nor any other Person on behalf of GGP or Purchaser makes any representation or warranty with respect to Purchaser, GGP or their respective assets, liabilities, condition (financial or otherwise) or prospects.

 

(i)                                     Acknowledgement.  Each of GGP and Purchaser acknowledges that (i) none of the Sellers nor any Person on behalf of the Sellers is making any representations or warranties whatsoever, express or implied, beyond those expressly given by the Sellers in Section 3.1 of this Agreement and (ii) neither GGP nor Purchaser has 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 Section 3.1 of this Agreement.

 

ARTICLE IV

 

COVENANTS

 

Section 4.1                                    Further Assurances.  Subject to Section 4.2, the parties agree to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, such further instruments or documents or take such other action (including providing instructions to the Depository Trust Company or other custodians of the Sellers’ Shares) as may be reasonably necessary (or as reasonably requested by another party) to consummate the Transaction.

 

ARTICLE V

 

CONDITIONS TO CLOSING

 

Section 5.1                                    Conditions to Each Party’s Obligation to Consummate the Transaction.  The respective obligation of each party hereto to consummate the Transaction is subject to the satisfaction or waiver of the following condition:

 

(a)                                 No Injunction.  No judgment, injunction, decree or other legal restraint (each, an “Order”) prohibiting the consummation of the Transaction shall have been issued by any Governmental Entity and be continuing in effect, there shall be no pending Proceeding commenced by a Governmental Entity seeking an Order that would prohibit the Transaction, and the consummation of the Transaction shall not have been prohibited or rendered illegal under any applicable Law.

 

8











 

Section 5.2                                    Conditions to the Sellers’ Obligation to Consummate the Transaction.  The respective obligations of the Sellers to consummate the Transaction are subject to the satisfaction or waiver of each of the following conditions:

 

(a)                                 Representations and Warranties.  The representations and warranties of Purchaser set forth in Section 3.2 shall be true and correct in all material respects as of the Signing Date and as of the Closing Date as if made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date).

 

(b)                                 Covenants.  Each of the covenants and agreements of Purchaser contained in this Agreement that are to be performed at or prior to the Closing shall have been duly performed in all material respects.

 

Section 5.3                                    Conditions to Purchaser’s Obligation to Consummate the Transaction.  The obligation of Purchaser to consummate the Transaction is subject to the satisfaction or waiver of each of the following conditions:

 

(a)                                 Representations and Warranties.  The representations and warranties of the Sellers set forth in Section 3.1 shall be true and correct in all material respects as of the Signing Date and as of the Closing Date as if made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date).

 

(b)                                 Covenants.  Each of the covenants and agreements of the Sellers contained in this Agreement that are to be performed at or prior to the Closing shall have been duly performed in all material respects.

 

ARTICLE VI

 

MISCELLANEOUS

 

Section 6.1                                    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 a Seller, to:

 

Pershing Square Capital Management, L.P.
 888 Seventh Avenue, 42nd Floor
 New York, New York 10019

Attn: William A. Ackman

 

9











 

Roy J. Katzovicz
 Facsimile: (212) 286-1133

 

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

 

Kirkland & Ellis LLP
 601 Lexington Avenue
 New York, New York 10022
 Attn: Stephen Fraidin

Richard M. Brand
 Facsimile: (212) 446-6460

 

(b)                                 If to Purchaser to:

 

c/o General Growth Properties Limited Partnership
 110 North Wacker Drive
 Chicago, Illinois 60606
 Attn: Marvin J. Levine

Facsimile: (312) 960-5993

 

Section 6.2                                    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 each other party. Notwithstanding the previous sentence, this Agreement, or Purchaser’s rights, interests or obligations hereunder (including, without limitation, the right to receive any of the Sellers’ Shares pursuant to this Agreement), may be assigned or transferred, in whole or in part, by Purchaser to one or more of its Affiliates; provided that no such assignment shall release Purchaser from its obligations hereunder to be performed by Purchaser on or prior to the Closing Date. 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.

 

Section 6.3                                    Survival.  The parties agree that the representations and warranties contained in Section 3.1(d) and Section 3.1(j) shall survive the Closing.

 

Section 6.4                                    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 6.5                                    Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.  Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement or the Transaction exclusively in the courts of the State of New York and the Federal courts of the United States, in each case, located in the County of New York (the “Chosen

 

10











 

Courts”).  Solely in connection with claims arising under this Agreement or the Transaction, each party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 6.1 of this Agreement.  EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION.

 

Section 6.6                                    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 6.7                                    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 Transaction.

 

Section 6.8                                    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.  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 of 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 6.9                                    Certain Remedies.

 

(a)                                 Specific Performance.  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)                                 No Consequential Damages.  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 suspected to exist in its favor, against any other party

 

11











 

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.

 

[Signature Pages Follow]

 

12











 

IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above written.

 

SELLERS:

 

	
 
    	
PERSHING SQUARE, L.P.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Pershing   Square Capital Management, L.P., 
    
	
 
    	
 
    	
its   Investment Manager
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PS   Management GP, LLC,
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Roy J. Katzovicz
    
	
 
    	
 
    	
Name:   Roy J. Katzovicz
    
	
 
    	
 
    	
Title:   Chief Legal Officer
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Nicholas A. Botta
    
	
 
    	
 
    	
Name:   Nicholas A. Botta
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
PERSHING SQUARE II, L.P.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Pershing   Square Capital Management, L.P., 
    
	
 
    	
 
    	
its   Investment Manager
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PS   Management GP, LLC,
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Roy J. Katzovicz
    
	
 
    	
 
    	
Name:   Roy J. Katzovicz
    
	
 
    	
 
    	
Title:   Chief Legal Officer
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Nicholas A. Botta
    
	
 
    	
 
    	
Name:   Nicholas A. Botta
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
PSRH, INC.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Pershing   Square Capital Management, L.P., its 
    
	
 
    	
 
    	
Investment   Manager
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PS   Management GP, LLC, 
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Roy J. Katzovicz
    
	
 
    	
 
    	
Name:   Roy J. Katzovicz
    
	
 
    	
 
    	
Title:   Chief Legal Officer
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Nicholas A. Botta
    
	
 
    	
 
    	
Name:   Nicholas A. Botta
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    


 











 

	
 
    	
PERSHING   SQUARE HOLDINGS, LTD.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Pershing   Square Capital Management, L.P., 
    
	
 
    	
 
    	
its   Investment Manager
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PS   Management GP, LLC, 
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Roy J. Katzovicz
    
	
 
    	
 
    	
Name:   Roy J. Katzovicz
    
	
 
    	
 
    	
Title:   Chief Legal Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Timothy J. Barefield
    
	
 
    	
 
    	
Name:   Timothy J. Barefield
    
	
 
    	
 
    	
Title:   Chief Operating Officer
    


 











 

	
PURCHASER:
    	
 
    	
 
    
	
 
    	
GENERAL   GROWTH PROPERTIES, INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Marvin J. Levine
    
	
 
    	
 
    	
Name:   Marvin J. Levine
    
	
 
    	
 
    	
Title:   Executive Vice President & 
    
	
 
    	
 
    	
Chief   Legal Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
GGP   LIMITED PARTNERSHIP
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
GGP,   LLC, 
    
	
 
    	
 
    	
its   General Partner
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
GGP   Real Estate Holding II, Inc.,
   its Managing Member
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/   Marvin J. Levine
    
	
 
    	
 
    	
 
    	
Name:   Marvin J. Levine
    
	
 
    	
 
    	
 
    	
Title:   Executive Vice President and 
   Chief Legal Officer
    
							


 











 

EXHIBIT A

 

SELLERS’ SHARES

 

	
Entity
    	
 
    	
Number of Shares Being Sold
    	
 
    
	
Pershing Square, L.P.
    	
 
    	
12,235,715
    	
 
    
	
Pershing Square II, L.P.
    	
 
    	
246,956
    	
 
    
	
PSRH, Inc.
    	
 
    	
10,178,324
    	
 
    
	
Pershing Square Holdings, Ltd.
    	
 
    	
4,963,287
    	
 
    
	
TOTAL:
    	
 
    	
27,624,282
    	
 
    


 











 

EXHIBIT B

 

NONFOREIGN PERSON CERTIFICATE - ENTITY TRANSFEROR

 

Section 1445 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.  For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity.  To inform the transferee that withholding tax is not required upon the disposition of shares in General Growth Properties, a Delaware corporation, by [Name of Transferor], the undersigned hereby certifies the following on behalf of [Name of Transferor]:

 

1.                                      [Name of Transferor] is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Treasury Regulations promulgated thereunder);

 

2.                                      [Name of Transferor] is not a disregarded entity as defined in §1.1445-2(b)(2)(iii) of the Treasury Regulations promulgated under the Code;

 

3.                                      [Name of Transferor]’s U.S. employer identification number is [                                          ]; and

 

4.                                      [Name of Transferor]’s office address is:

 

The undersigned understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

 











 

Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief, it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of [Name of Transferor].

 

	
 
    	
[Name   of Transferor]
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    
	
 
    	
 
    
	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
Date: