Exhibit 10.3


 


Execution Version




 





 


 


STOCK
PURCHASE AGREEMENT


 


dated as of
March 31, 2010


 


between


 


THE
PURCHASERS PARTY HERETO


 


and


 


GENERAL
GROWTH PROPERTIES, INC.


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I PURCHASE OF NEW COMMON STOCK; CLOSING

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Purchase
  of New Common Stock

  	
  3

  
	
  SECTION 1.2

  	
  Closing

  	
  3

  
	
  SECTION 1.3

  	
  Company
  Rights Offering Election

  	
  4

  
	
  SECTION 1.4

  	
  Company
  Election to Replace Certain Shares

  	
  4

  
	
  SECTION 1.5

  	
  Pro
  Rata Reductions with Pershing Agreement

  	
  4

  
	
   

  	
   

  
	
  ARTICLE II GGO SHARE DISTRIBUTION AND GGO RIGHTS
  OFFERING

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  GGO
  Share Distribution

  	
  5

  
	
  SECTION 2.2

  	
  GGO
  Rights Offering

  	
  6

  
	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
  COMPANY

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Organization
  and Qualification

  	
  9

  
	
  SECTION 3.2

  	
  Corporate
  Power and Authority

  	
  9

  
	
  SECTION 3.3

  	
  Execution
  and Delivery; Enforceability

  	
  10

  
	
  SECTION 3.4

  	
  Authorized
  Capital Stock

  	
  10

  
	
  SECTION 3.5

  	
  Issuance

  	
  11

  
	
  SECTION 3.6

  	
  No
  Conflict

  	
  12

  
	
  SECTION 3.7

  	
  Consents
  and Approvals

  	
  13

  
	
  SECTION 3.8

  	
  Company
  Reports

  	
  14

  
	
  SECTION 3.9

  	
  No
  Undisclosed Liabilities

  	
  15

  
	
  SECTION 3.10

  	
  No
  Material Adverse Effect

  	
  15

  
	
  SECTION 3.11

  	
  No
  Violation or Default: Licenses and Permits

  	
  15

  
	
  SECTION 3.12

  	
  Legal
  Proceedings

  	
  16

  
	
  SECTION 3.13

  	
  Investment
  Company Act

  	
  16

  
	
  SECTION 3.14

  	
  Compliance
  With Environmental Laws

  	
  16

  
	
  SECTION 3.15

  	
  Company
  Benefit Plans

  	
  17

  
	
  SECTION 3.16

  	
  Labor
  and Employment Matters

  	
  18

  
	
  SECTION 3.17

  	
  Insurance

  	
  18

  
	
  SECTION 3.18

  	
  No
  Unlawful Payments

  	
  18

  
	
  SECTION 3.19

  	
  No
  Broker’s Fees

  	
  18

  
	
  SECTION 3.20

  	
  Real
  and Personal Property

  	
  19

  
	
  SECTION 3.21

  	
  Tax
  Matters

  	
  23

  
	
  SECTION 3.22

  	
  Material
  Contracts

  	
  25

  
	
  SECTION 3.23

  	
  Certain
  Restrictions on Charter and Bylaws Provisions; State Takeover Laws

  	
  25

  
	
  SECTION 3.24

  	
  No
  Other Representations or Warranties

  	
  26

  
	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
  PURCHASER

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Organization

  	
  26

  
	
  SECTION 4.2

  	
  Power
  and Authority

  	
  26

  
	
  SECTION 4.3

  	
  Execution
  and Delivery

  	
  27

  
	
  SECTION 4.4

  	
  No
  Conflict

  	
  27

  



 

















 


	
  SECTION 4.5

  	
  Consents
  and Approvals

  	
  27

  
	
  SECTION 4.6

  	
  Compliance
  with Laws

  	
  27

  
	
  SECTION 4.7

  	
  Legal
  Proceedings

  	
  27

  
	
  SECTION 4.8

  	
  No
  Broker’s Fees

  	
  27

  
	
  SECTION 4.9

  	
  Sophistication

  	
  28

  
	
  SECTION 4.10

  	
  Purchaser
  Intent

  	
  28

  
	
  SECTION 4.11

  	
  Reliance
  on Exemptions

  	
  28

  
	
  SECTION 4.12

  	
  REIT
  Representations

  	
  28

  
	
  SECTION 4.13

  	
  Financial
  Capability

  	
  28

  
	
  SECTION 4.14

  	
  No
  Other Representations or Warranties

  	
  28

  
	
  SECTION 4.15

  	
  Acknowledgement

  	
  28

  
	
   

  	
   

  
	
  ARTICLE V COVENANTS OF THE COMPANY AND PURCHASER

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Bankruptcy
  Court Motions and Orders

  	
  29

  
	
  SECTION 5.2

  	
  Warrants,
  New Warrants and GGO Warrants

  	
  29

  
	
  SECTION 5.3

  	
  [Intentionally
  Omitted.]

  	
  30

  
	
  SECTION 5.4

  	
  Listing

  	
  30

  
	
  SECTION 5.5

  	
  Use
  of Proceeds

  	
  30

  
	
  SECTION 5.6

  	
  Access
  to Information

  	
  30

  
	
  SECTION 5.7

  	
  Competing
  Transactions

  	
  31

  
	
  SECTION 5.8

  	
  Reservation
  for Issuance

  	
  31

  
	
  SECTION 5.9

  	
  Subscription
  Rights

  	
  31

  
	
  SECTION 5.10

  	
  [Intentionally
  Omitted.]

  	
  35

  
	
  SECTION 5.11

  	
  Notification
  of Certain Matters

  	
  35

  
	
  SECTION 5.12

  	
  Further
  Assurances

  	
  35

  
	
  SECTION 5.13

  	
  Hughes
  Heirs Obligations

  	
  35

  
	
  SECTION 5.14

  	
  Rights
  Agreement; Reorganized Company Organizational Documents

  	
  36

  
	
  SECTION 5.15

  	
  Stockholder
  Approval

  	
  37

  
	
  SECTION 5.16

  	
  Closing
  Date Net Debt

  	
  38

  
	
   

  	
   

  
	
  ARTICLE VI ADDITIONAL COVENANTS OF PURCHASER

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Information

  	
  39

  
	
  SECTION 6.2

  	
  Purchaser
  Efforts

  	
  39

  
	
  SECTION 6.3

  	
  Plan
  Support

  	
  40

  
	
  SECTION 6.4

  	
  Transfer
  Restrictions

  	
  40

  
	
  SECTION 6.5

  	
  [Intentionally
  omitted.]

  	
  41

  
	
  SECTION 6.6

  	
  REIT
  Representations and Covenants

  	
  41

  
	
  SECTION 6.7

  	
  Non-Control
  Agreement

  	
  42

  
	
   

  	
   

  
	
  ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF
  PURCHASER

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Conditions
  to the Obligations of Purchaser

  	
  42

  
	
   

  	
   

  
	
  ARTICLE VIII CONDITIONS TO THE OBLIGATIONS OF THE
  COMPANY

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Conditions
  to the Obligations of the Company

  	
  51

  
	
   

  	
   

  
	
  ARTICLE IX [INTENTIONALLY OMITTED]

  	
  53

  



 


ii

















 


	
  ARTICLE X SURVIVAL OF REPRESENTATIONS AND
  WARRANTIES

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Survival
  of Representations and Warranties

  	
  53

  
	
   

  	
   

  
	
  ARTICLE XI TERMINATION

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Termination

  	
  53

  
	
  SECTION 11.2

  	
  Effects
  of Termination

  	
  56

  
	
   

  	
   

  
	
  ARTICLE XII DEFINITIONS

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  Defined
  Terms

  	
  56

  
	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 13.1

  	
  Notices

  	
  70

  
	
  SECTION 13.2

  	
  Assignment;
  Third Party Beneficiaries

  	
  71

  
	
  SECTION 13.3

  	
  Prior
  Negotiations; Entire Agreement

  	
  72

  
	
  SECTION 13.4

  	
  Governing
  Law; Venue

  	
  72

  
	
  SECTION 13.5

  	
  Company
  Disclosure Letter

  	
  72

  
	
  SECTION 13.6

  	
  Counterparts

  	
  72

  
	
  SECTION 13.7

  	
  Expenses

  	
  73

  
	
  SECTION 13.8

  	
  Waivers
  and Amendments

  	
  73

  
	
  SECTION 13.9

  	
  Construction

  	
  73

  
	
  SECTION 13.10

  	
  Adjustment
  of Share Numbers and Prices

  	
  74

  
	
  SECTION 13.11

  	
  Certain
  Remedies

  	
  74

  
	
  SECTION 13.12

  	
  Bankruptcy
  Matters

  	
  75

  



 


iii

















 


LIST OF
EXHIBITS AND SCHEDULES


 


	
  Exhibit A:

  	
   

  	
  Plan
  Summary Term Sheet

  
	
   

  	
   

  	
   

  
	
  Exhibit B:

  	
   

  	
  Post-Bankruptcy
  GGP Corporate Structure

  
	
   

  	
   

  	
   

  
	
  Exhibit C-1:

  	
   

  	
  Brookfield
  Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit C-2:

  	
   

  	
  Pershing
  Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit D:

  	
   

  	
  REIT
  Representation Letter

  
	
   

  	
   

  	
   

  
	
  Exhibit E:

  	
   

  	
  GGO
  Assets

  
	
   

  	
   

  	
   

  
	
  Exhibit F:

  	
   

  	
  Form of
  Approval Order

  
	
   

  	
   

  	
   

  
	
  Exhibit G:

  	
   

  	
  Form of
  Warrant Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit H:

  	
   

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  	
   

  
	
  Exhibit I:

  	
   

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  	
   

  
	
  Exhibit J:

  	
   

  	
  Form of
  REIT Opinion

  
	
   

  	
   

  	
   

  
	
  Exhibit K:

  	
   

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  	
   

  
	
  Exhibit L:

  	
   

  	
  [Intentionally
  Omitted]

  
	
   

  	
   

  	
   

  
	
  Exhibit M:

  	
   

  	
  Form of
  Non-Control Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit N:

  	
   

  	
  Certain
  REIT Investors

  
	
   

  	
   

  	
   

  
	
  Schedule
  I:

  	
   

  	
  GGO
  and GGP Pro Rata Shares

  



 


iv
















 


INDEX OF
DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  2006
  Bank Loan

  	
   

  	
  56

  
	
  Act

  	
   

  	
  40

  
	
  Additional
  Financing

  	
   

  	
  46

  
	
  Additional
  Sales Period

  	
   

  	
  56

  
	
  Adequate
  Reserves

  	
   

  	
  23

  
	
  Affiliate

  	
   

  	
  57

  
	
  Agreement

  	
   

  	
  1

  
	
  Anticipated
  Debt Paydowns

  	
   

  	
  46

  
	
  Approval
  Motion

  	
   

  	
  29

  
	
  Approval
  Order

  	
   

  	
  29

  
	
  Asset
  Sales

  	
   

  	
  47

  
	
  Backstop
  Commitment

  	
   

  	
  7

  
	
  Backstop
  Consideration

  	
   

  	
  8

  
	
  Bankruptcy
  Cases

  	
   

  	
  1

  
	
  Bankruptcy
  Code

  	
   

  	
  1

  
	
  Bankruptcy
  Court

  	
   

  	
  1

  
	
  Blue
  Sky

  	
   

  	
  40

  
	
  Brookfield
  Agreement

  	
   

  	
  2

  
	
  Brookfield
  Backstop Commitment

  	
   

  	
  7

  
	
  Brookfield
  Consortium Member

  	
   

  	
  57

  
	
  Brookfield
  Investor

  	
   

  	
  2

  
	
  Business
  Day

  	
   

  	
  57

  
	
  Capital
  Raising Activities

  	
   

  	
  57

  
	
  Cash
  Equivalents

  	
   

  	
  57

  
	
  Change
  of Control

  	
   

  	
  57

  
	
  Chapter
  11

  	
   

  	
  1

  
	
  Claims

  	
   

  	
  58

  
	
  Closing

  	
   

  	
  3

  
	
  Closing
  Date

  	
   

  	
  4

  
	
  Closing
  Date Net Debt

  	
   

  	
  58

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

  	
   

  	
  58

  
	
  Closing
  Restraint

  	
   

  	
  55

  
	
  Code

  	
   

  	
  17

  
	
  Common
  Stock

  	
   

  	
  1

  
	
  Company

  	
   

  	
  1

  
	
  Company
  Benefit Plan

  	
   

  	
  59

  
	
  Company
  Board

  	
   

  	
  59

  
	
  Company
  Disclosure Letter

  	
   

  	
  9

  
	
  Company
  Ground Lease Property

  	
   

  	
  21

  
	
  Company
  Mortgage Loan

  	
   

  	
  22

  
	
  Company
  Option Plans

  	
   

  	
  10

  
	
  Company
  Properties

  	
   

  	
  19

  
	
  Company
  Property

  	
   

  	
  19

  



 


v

















 


	
  Company
  Property Lease

  	
   

  	
  21

  
	
  Company
  Rights Offering

  	
   

  	
  4

  
	
  Company
  SEC Reports

  	
   

  	
  14

  
	
  Competing
  Transaction

  	
   

  	
  59

  
	
  Conclusive
  Net Debt Adjustment Statement

  	
   

  	
  59

  
	
  Confirmation
  Order

  	
   

  	
  43

  
	
  Confirmed
  Debtors

  	
   

  	
  67

  
	
  Contract

  	
   

  	
  60

  
	
  Conversion
  Shares

  	
   

  	
  60

  
	
  Corporate
  Level Debt

  	
   

  	
  60

  
	
  Debt

  	
   

  	
  60

  
	
  Debtors

  	
   

  	
  1

  
	
  Designation
  Conditions

  	
   

  	
  3

  
	
  DIP
  Loan

  	
   

  	
  60

  
	
  Disclosure
  Statement

  	
   

  	
  60

  
	
  Disclosure
  Statement Order

  	
   

  	
  43

  
	
  Dispute
  Notice

  	
   

  	
  38

  
	
  Disputed
  Items

  	
   

  	
  38

  
	
  Effective
  Date

  	
   

  	
  3

  
	
  Eligible
  Holder

  	
   

  	
  6

  
	
  Encumbrances

  	
   

  	
  19

  
	
  Environmental
  Laws

  	
   

  	
  16

  
	
  Equity
  Exchange

  	
   

  	
  1

  
	
  Equity
  Securities

  	
   

  	
  11

  
	
  ERISA

  	
   

  	
  60

  
	
  ERISA
  Affiliate

  	
   

  	
  17

  
	
  Essential
  Assets

  	
   

  	
  60

  
	
  Excess
  Surplus Amount

  	
   

  	
  61

  
	
  Exchangeable
  Notes

  	
   

  	
  61

  
	
  Excluded
  Claims

  	
   

  	
  61

  
	
  Excluded
  Non-US Plans

  	
   

  	
  17

  
	
  Expiration
  Time

  	
   

  	
  7

  
	
  Fairholme

  	
   

  	
  62

  
	
  Foreign
  Plan

  	
   

  	
  17

  
	
  Fully
  Diluted Basis

  	
   

  	
  62

  
	
  GAAP

  	
   

  	
  62

  
	
  GGO

  	
   

  	
  2

  
	
  GGO
  Backstop Limit

  	
   

  	
  7

  
	
  GGO
  Common Share Amount

  	
   

  	
  62

  
	
  GGO
  Common Stock

  	
   

  	
  5

  
	
  GGO
  Minimum Allocation Right

  	
   

  	
  7

  
	
  GGO
  Note Amount

  	
   

  	
  62

  
	
  GGO
  Per Share Purchase Price

  	
   

  	
  6

  
	
  GGO
  Pro Rata Share

  	
   

  	
  63

  
	
  GGO
  Promissory Note

  	
   

  	
  63

  
	
  GGO
  Purchase Price

  	
   

  	
  63

  



 


vi

















 


	
  GGO
  Representative

  	
   

  	
  5

  
	
  GGO
  Rights Offering

  	
   

  	
  6

  
	
  GGO
  Rights Offering Shares

  	
   

  	
  6

  
	
  GGO
  Setup Costs

  	
   

  	
  63

  
	
  GGO
  Share Distribution

  	
   

  	
  6

  
	
  GGO
  Shares

  	
   

  	
  63

  
	
  GGO
  Warrants

  	
   

  	
  30

  
	
  GGP

  	
   

  	
  1

  
	
  GGP
  Pro Rata Shares

  	
   

  	
  63

  
	
  Governmental
  Entity

  	
   

  	
  63

  
	
  Hazardous
  Materials

  	
   

  	
  16

  
	
  Hughes
  Agreement

  	
   

  	
  64

  
	
  Hughes
  Amount

  	
   

  	
  63

  
	
  Hughes
  Heirs Obligations

  	
   

  	
  64

  
	
  Identified
  Assets

  	
   

  	
  5

  
	
  Indebtedness

  	
   

  	
  64

  
	
  Indemnity
  Cap

  	
   

  	
  39

  
	
  Initial
  Investors

  	
   

  	
  2

  
	
  Investment
  Agreements

  	
   

  	
  2

  
	
  Joint
  Venture

  	
   

  	
  64

  
	
  Knowledge

  	
   

  	
  64

  
	
  Law

  	
   

  	
  64

  
	
  Liquidity
  Equity Issuances

  	
   

  	
  64

  
	
  Liquidity
  Target

  	
   

  	
  46

  
	
  Material
  Adverse Effect

  	
   

  	
  65

  
	
  Material
  Contract

  	
   

  	
  65

  
	
  Material
  Lease

  	
   

  	
  21

  
	
  Measurement
  Date

  	
   

  	
  10

  
	
  Most
  Recent Statement

  	
   

  	
  19

  
	
  MPC
  Assets

  	
   

  	
  66

  
	
  MPC
  Tax Reserve

  	
   

  	
  66

  
	
  MPC
  Taxes

  	
   

  	
  66

  
	
  Net
  Debt Excess Amount

  	
   

  	
  66

  
	
  Net
  Debt Surplus Amount

  	
   

  	
  66

  
	
  New
  Common Stock

  	
   

  	
  1

  
	
  New
  Debt

  	
   

  	
  46

  
	
  New
  Warrants

  	
   

  	
  30

  
	
  Non-Control
  Agreement

  	
   

  	
  66

  
	
  Non-Controlling
  Properties

  	
   

  	
  66

  
	
  NYSE

  	
   

  	
  30

  
	
  Offering
  Premium

  	
   

  	
  67

  
	
  Operating
  Partnership

  	
   

  	
  67

  
	
  PBGC

  	
   

  	
  17

  
	
  Per
  Share Purchase Price

  	
   

  	
  3

  
	
  Permitted
  Claims

  	
   

  	
  67

  
	
  Permitted
  Claims Amount

  	
   

  	
  67

  



 


vii

















 


	
  Permitted
  Replacement Shares

  	
   

  	
  67

  
	
  Permitted
  Title Exceptions

  	
   

  	
  19

  
	
  Pershing
  Agreement

  	
   

  	
  2

  
	
  Pershing
  Backstop Commitment

  	
   

  	
  7

  
	
  Pershing
  Purchasers

  	
   

  	
  2

  
	
  Person

  	
   

  	
  67

  
	
  Petition
  Date

  	
   

  	
  1

  
	
  Plan

  	
   

  	
  1

  
	
  Plan
  Debtors

  	
   

  	
  67

  
	
  Plan
  Summary Term Sheet

  	
   

  	
  1

  
	
  PMA
  Claims

  	
   

  	
  67

  
	
  Preliminary
  Closing Date Net Debt Review Deadline

  	
   

  	
  68

  
	
  Preliminary
  Closing Date Net Debt Review Period

  	
   

  	
  68

  
	
  Preliminary
  Closing Date Net Debt Schedule

  	
   

  	
  38

  
	
  Proportionally
  Consolidated Debt

  	
   

  	
  68

  
	
  Proportionally
  Consolidated Unrestricted Cash

  	
   

  	
  68

  
	
  Proposed
  Approval Order

  	
   

  	
  29

  
	
  Proposed
  Securities

  	
   

  	
  31

  
	
  Purchase
  Group

  	
   

  	
  68

  
	
  Purchase
  Notice

  	
   

  	
  8

  
	
  Purchase
  Price

  	
   

  	
  3

  
	
  Purchaser

  	
   

  	
  1

  
	
  Purchaser
  Debt Holdings

  	
   

  	
  60

  
	
  Record
  Date

  	
   

  	
  6

  
	
  Refinance
  Cap

  	
   

  	
  48

  
	
  Reinstated
  Amounts

  	
   

  	
  46

  
	
  Reinstatement
  Adjustment Amount

  	
   

  	
  68

  
	
  Reinstatement
  Amount

  	
   

  	
  68

  
	
  REIT

  	
   

  	
  24

  
	
  REIT
  Subsidiary

  	
   

  	
  24

  
	
  Reorganized
  Company

  	
   

  	
  1

  
	
  Reorganized
  Company Organizational Documents

  	
   

  	
  36

  
	
  Reserve

  	
   

  	
  67

  
	
  Reserve
  Surplus Amount

  	
   

  	
  69

  
	
  Resolution
  Period

  	
   

  	
  38

  
	
  Right

  	
   

  	
  6

  
	
  Rights
  Agreement

  	
   

  	
  69

  
	
  Rights
  Offering Election

  	
   

  	
  4

  
	
  Rouse
  Bonds

  	
   

  	
  69

  
	
  Rule 144

  	
   

  	
  41

  
	
  Sales
  Cap

  	
   

  	
  48

  
	
  SEC

  	
   

  	
  14

  
	
  Securities
  Act

  	
   

  	
  14

  
	
  Share
  Cap Number

  	
   

  	
  46

  
	
  Share
  Equivalent

  	
   

  	
  69

  
	
  Shares

  	
   

  	
  3

  



 


viii

















 


	
  Significant
  Subsidiaries

  	
   

  	
  69

  
	
  Specified
  Debt

  	
   

  	
  69

  
	
  Subscription
  Agent

  	
   

  	
  7

  
	
  Subscription
  Right

  	
   

  	
  31

  
	
  Subsidiary

  	
   

  	
  69

  
	
  Synthetic
  Lease Obligation

  	
   

  	
  64

  
	
  Target
  Net Debt

  	
   

  	
  69

  
	
  Tax
  Protection Agreements

  	
   

  	
  69

  
	
  Tax
  Return

  	
   

  	
  24

  
	
  Taxes

  	
   

  	
  23

  
	
  Termination
  Date

  	
   

  	
  70

  
	
  Total
  Unsubscribed Shares

  	
   

  	
  7

  
	
  Transactions

  	
   

  	
  70

  
	
  TRUPS

  	
   

  	
  70

  
	
  Unrestricted
  Cash

  	
   

  	
  70

  
	
  Unrestricted
  Date

  	
   

  	
  40

  
	
  Unsecured
  Indebtedness

  	
   

  	
  70

  
	
  UPREIT
  Units

  	
   

  	
  70

  
	
  Warrant
  Agreement

  	
   

  	
  29

  
	
  Warrants

  	
   

  	
  29

  



 


ix
















 


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


 


RECITALS


 


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


 


WHEREAS, each Purchaser, separately
and not jointly, desires to assist GGP in its plans to recapitalize and emerge
from bankruptcy and has agreed to sponsor the implementation of a joint chapter
11 plan of reorganization based on the Plan Summary Term Sheet (as defined
below) (together with all documents and agreements that form part of such plan
or related plan supplement or are related thereto, and as it may be amended,
modified or supplemented from time to time, in each case, to the extent it
relates to the implementation and effectuation of the Plan Summary Term Sheet
and this Agreement, the “Plan”), of GGP and its Subsidiaries and
Affiliates who are debtors and debtors-in-possession (the “Debtors”) in
the chapter 11 cases pending and jointly administered in the Bankruptcy Court
(the “Bankruptcy Cases”).


 


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


 


WHEREAS, the Plan shall provide,
among other things, that (i) each holder of common stock, par value $0.01
per share, of GGP (the “Common Stock”) shall receive, in exchange for
each share of Common Stock held by such holder, one share (subject to
adjustment as contemplated by Section 5.13(a) hereof) of new
common stock (the “New Common Stock”) of a new company that succeeds to
GGP in the manner contemplated by Exhibit B upon consummation of
the Plan (the “Reorganized Company”) and (ii) any Equity Securities
(other than Common Stock) of the Company (as defined below) or any of its
Subsidiaries (as defined below) outstanding immediately after the Effective
Date that were previously convertible into, or exercisable or exchangeable for,
Common Stock shall thereafter be convertible into, or exercisable or
exchangeable for, New Common Stock (based upon the number of shares of Common
Stock underlying such Equity Securities) (the transactions contemplated by
clauses (i) and (ii) of this recital being referred to herein as the
“Equity Exchange”).  For purposes
of this Agreement, the “Company” shall be deemed to refer, prior to
consummation of the Plan, to GGP and, on and after consummation of the Plan,
the Reorganized Company, as the context requires.


 


WHEREAS, each Purchaser, separately
and not jointly, desires to make an investment in the Reorganized Company on
the terms and subject to the conditions described herein in the form of the
purchase of shares of New Common Stock as contemplated hereby.


 

















 


WHEREAS, in addition to the Equity
Exchange and the sale of the Shares (as defined below), the Plan shall provide
for the incorporation by the Company of a new subsidiary, General Growth
Opportunities, Inc. (“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 (subject to adjustment as
contemplated by Section 5.13(b) hereof and 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 certain holders of UPREIT Units of all of the capital stock
of GGO and the consummation of the GGO Rights Offering (as described herein).


 


WHEREAS, the Company has requested
that each Purchaser, separately and not jointly, commit to purchase the Shares
and the GGO Shares at a fixed price for the term hereof.


 


WHEREAS, each Purchaser, separately
and not jointly, has agreed to enter into this Agreement and commit to purchase
the Shares and the GGO Shares only on the condition that the Company, as
promptly as practicable following the date hereof (but no later than the date
provided in Section 5.2 hereof), issue the Warrants contemplated
herein and perform its other obligations hereunder.


 


WHEREAS, on the date hereof, the
Company entered into an agreement (in the form attached hereto as Exhibit C-1
together with any amendments thereto as have been approved by each Purchaser,
the “Brookfield Agreement”) with REP Investments LLC (the “Brookfield
Investor”) pursuant to which the Brookfield Investor has agreed to make (i) an
investment of up to $2,500,000,000 in the Reorganized Company in the form of
the purchase of shares of New Common Stock and (ii) an investment of up to
$125,000,000 in GGO in the form of the purchase of shares of GGO Common Stock
pursuant to a commitment to backstop a portion of the GGO Rights Offering.


 


WHEREAS, on the date hereof, the
Company entered into an agreement (in the form attached hereto as Exhibit C-2
together with any amendments thereto as have been approved by each Purchaser,
the “Pershing Agreement”  and,
together with this Agreement and the Brookfield Agreement, the “Investment
Agreements”) with Pershing Square, L.P., Pershing Square II, L.P., Pershing
Square International, Ltd. and Pershing Square International V, Ltd. (the “Pershing
Purchasers” and, together with each Purchaser and the Brookfield Investor,
the “Initial Investors”) pursuant to which the Pershing Purchasers have
agreed to make (i) an investment of up to $1,085,714,290 in the
Reorganized Company in the form of the purchase of shares of New Common Stock
and (ii) an investment of up to $62,500,000 in GGO in the form of the purchase
of shares of GGO Common Stock pursuant to a commitment to backstop a portion of
the GGO Rights Offering.


 


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


 


2

















 


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 (x) its GGP Pro Rata Share of the Total Purchase Amount (as defined
below) minus (y) its Conversion Shares, 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.


 


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


 


SECTION 1.2                          Closing.  Subject to the satisfaction or waiver of the
conditions (excluding conditions that, by their nature, cannot be satisfied
until the Closing, but subject to the satisfaction or waiver of those
conditions as of the Closing) set forth in Article VII and Article VIII,
the closing of the purchase of the Shares 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


 


3

















 


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 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 with respect to the
GGO Rights Offering; 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.  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 any portion of the number of such
Permitted Replacement Shares as the Company may determine in its discretion; provided,
that the Total Purchase Amount shall not be less than 190,000,000.  No election by the Company under this Section 1.4
shall be effective unless received by each Purchaser on or prior to the tenth
day prior to the hearing to approve the Confirmation Order under Bankruptcy Rule 2002.  Any election by the Company under this Section 1.4
shall be binding and irrevocable.


 


SECTION 1.5                          Pro Rata
Reductions with Pershing Agreement.  No election by the Company pursuant to Section 1.4
shall be made unless the Company is making a similar election under the
Pershing Agreement, such that each of the aggregate number of Shares required
to be purchased at Closing is allocated as among each Purchaser and among each
of the Pershing Purchasers under the Pershing Agreement in accordance with the
applicable GGP Pro Rata Share.


 


4

















 


ARTICLE II


 


GGO SHARE
DISTRIBUTION AND GGO RIGHTS OFFERING


 


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


 


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


 


(b)                                 Subject to Section 5.13(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) in the GGO Rights Offering, (y) in connection with the
Backstop Consideration and the backstop consideration issuable to the other
Initial Investors pursuant to 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


 


5

















 


Company
(pre-issuance of the Shares) on a pro rata basis and certain holders of Common
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 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 all rights to develop and/or redevelop
(as appropriate) the remainder of the CMPC). 
On or prior to the Effective Date, the Company and GGO shall enter into
a mutually satisfactory development and cooperation agreement with respect to
the CMPC, which agreement shall provide, among other things, that GGO shall
grant mutually satisfactory easements, to the extent not already granted, such
that the office buildings retained by GGP (as provided above) continuously
shall have access to parking spaces appropriate for such office buildings.


 


SECTION 2.2                          GGO Rights
Offering.


 


(a)                                  On the terms and subject to
the conditions set forth herein, the Plan shall provide for the following:


 


(i)            That GGO shall
offer 50,000,000 shares of GGO Common Stock (the “GGO Rights Offering Shares”)
pursuant to a rights offering (the “GGO Rights Offering”) which shall be
completed at the Company’s election either (A) on or prior to the
Effective Date or (B) promptly (but in no event later than 90 days)
following the Effective Date.  Pursuant
to the GGO Rights Offering, each holder of shares of Common Stock entitled to
subscribe to the GGO Rights Offering (each, an “Eligible Holder”), as of
the record date approved by the Bankruptcy Court in connection with the Plan
(the “Record Date”), shall be offered a transferable subscription right
(each, a “Right”) to purchase up to its pro rata share (after giving
effect to the GGO Minimum Allocation Right and minimum allocation rights
granted to other investors in the Plan) of the GGO Rights Offering Shares at a
purchase price of $5.00 per share of GGO Common Stock (the “GGO Per Share
Purchase Price”).


 


6

















 


(ii)           That each
Purchaser shall be entitled to receive a minimum allocation in connection with
the GGO Rights Offering equal to its GGO Pro Rata share of 10,000,000 shares of
GGO Common Stock at the GGO Per Share Purchase Price (the “GGO Minimum
Allocation Right”).


 


(iii)          That if the
subscription agent for the GGO Rights Offering (the “Subscription Agent”)
for any reason does not receive from a given Eligible Holder both a timely and
duly completed subscription form for the GGO Rights Offering and timely payment
of such Eligible Holder’s aggregate GGO Per Share Purchase Price prior to the
expiration time for the GGO Rights Offering (the “Expiration Time”),
such Eligible Holder shall be deemed to have relinquished and waived its right
to participate in the GGO Rights Offering.


 


(iv)          The Expiration
Time shall occur no later than ninety (90) days after the Effective Date.


 


(b)                                 In order to facilitate the
GGO Rights Offering, pursuant to this Agreement, and subject to the terms,
conditions and limitations set forth herein, the Plan will provide that GGO
will sell to each Purchaser in the GGO Rights Offering, and each Purchaser
hereby agrees to subscribe and pay for, a number of shares of GGO Common Stock
(not to exceed the GGO Backstop Limit (as such term is defined below)) equal to
the product of (y) such Purchaser’s GGO Pro Rata Share multiplied by (z)(i) the
GGO Rights Offering Shares minus (ii) the number of shares of GGO Common
Stock offered pursuant to the GGO Rights Offering and duly subscribed for and
paid for on or before the Expiration Time (the difference between (i) and (ii) after
applying the GGO Backstop Limit, the “Unsubscribed Shares” and such
Purchaser’s commitment to purchase such Unsubscribed Shares being referred to
as its “Backstop Commitment”); provided, however, that the
Backstop Commitment is conditioned upon GGO having filed, and the SEC declaring
effective, a shelf registration statement on Form S-1 or S-11, as
applicable, prior to the date of the completion of the GGO Rights Offering
covering resales by each Purchaser of the GGO Shares and shares issuable upon
exercise of the GGO Warrants, containing a plan of distribution reasonably
satisfactory to each Purchaser, but subject to the provisions of Section 6.4
and the applicable Non-Control Agreement, if any.  For purposes of this Agreement, each
Purchaser’s “GGO Backstop Limit” means the number of shares of GGO
Common Stock equal to (i) such Purchaser’s GGO Pro Rata Share of the
quotient obtained by dividing (x) $125,000,000 by (y) the GGO Per
Share Purchase Price minus (ii) the number of shares of GGO Common Stock
subscribed, and paid for, on or before the Expiration Time by such Purchaser
pursuant to its GGO Minimum Allocation Right. 
If the Brookfield Consortium Members and/or the Pershing Purchasers have
any obligation to subscribe and pay for shares of GGO Common Stock offered
pursuant to the GGO Rights Offering (the “Brookfield Backstop Commitment”
and/or “Pershing Backstop Commitment”, respectively) in the Brookfield
Agreement or Pershing Agreement, respectively, the Backstop Commitment shall be
applied pro rata with the Brookfield Backstop Commitment and Pershing Backstop
Commitment, such that the total number of shares of GGO Common Stock not
subscribed for in the GGO Rights Offering (the “Total Unsubscribed Shares”)
shall be allocated in proportion to their respective backstop commitments
(subject in the case of each Purchaser to its GGO Backstop Limit and in


 


7

















 


the
case of the Brookfield Consortium Members or Pershing Purchasers to the
applicable limits in the Brookfield Agreement or Pershing Agreement,
respectively).


 


(c)                                  The Subscription Agent shall
be instructed to give each Purchaser as soon as reasonably practicable after
the Expiration Time, by electronic facsimile transmission or by electronic mail
a notice conforming to the requirements specified herein of either (i) the
calculation of the number of Unsubscribed Shares and a summary of the portion
of the Total Unsubscribed Shares required to be purchased by each Purchaser
and, if applicable, each Brookfield Investor and each Pershing Purchaser (a “Purchase
Notice”), or (ii) in the absence of any Unsubscribed Shares, the fact
that there are no Unsubscribed Shares.  If
at the Expiration Time the Total Unsubscribed Shares are in excess of the
aggregate Backstop Commitment of each Purchaser, the Brookfield Backstop
Commitment and the Pershing Backstop Commitment, then each Purchaser shall also
have the right, but not the obligation, to purchase on the same terms as its
Backstop Commitment such Purchaser’s GGO Pro Rata Share of fifty percent (50%)
the number of Total Unsubscribed Shares in excess of the aggregate Backstop
Commitments, the Brookfield Backstop Commitment and the Pershing Backstop
Commitment, exercisable within 30 days after receipt of the Purchase Notice.


 


(d)                                 The Plan shall provide that
unless this Agreement has been previously terminated, on the Effective Date GGO
shall issue to each Purchaser (or its designees in accordance with and subject
to the Designation Conditions) a number of shares of GGO Common Stock equal to
the quotient obtained by dividing (x) its GGO Pro Rata Share of $6,250,000
by (y) the GGO Per Share Purchase Price (the “Backstop Consideration”)
as compensation for the risk and efforts of its Backstop Commitment.


 


(e)                                  In the GGO Rights Offering,
each Purchaser shall purchase at the GGO Per Share Purchase Price, and GGO
shall sell, such number of Unsubscribed Shares as are listed in the final
Purchase Notice provided to such Purchaser by the Company pursuant to Section 2.2(c) hereof,
without prejudice to the rights of such Purchaser or GGO to seek later an
upward or downward adjustment if the number of Unsubscribed Shares in such
Purchase Notice is miscalculated.


 


(f)                                    On the terms and subject to
the conditions set forth herein, the Plan shall provide that delivery of the
Unsubscribed Shares shall be made promptly by GGO to the account of each
Purchaser (or to such other accounts as the applicable Purchaser may designate
in accordance with and subject to the Designation Conditions) against payment
of the aggregate GGO Per Share Purchase Price for the Unsubscribed Shares by
wire transfer of immediately available funds to the account specified by GGO to
such Purchaser at least twenty-four hours in advance.


 


(g)                                 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.


 


(h)                                 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.


 


8
















 


ARTICLE III


 


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


 


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


 


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


 


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.


 


9

















 


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


 


SECTION 3.3         Execution and
Delivery; Enforceability.


 


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


 


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


 


SECTION 3.4         Authorized
Capital Stock.   As of the
date of this Agreement, the authorized capital stock of the Company consists of
875,000,000 shares of Common Stock and of 5,000,000 shares of preferred
stock.  The issued and outstanding
capital stock of the Company and the shares of Common Stock available for grant
pursuant to the Company’s 1993 Stock 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


 


10

















 


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


 


SECTION 3.5         Issuance.


 


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


 


11

















 


assessable
and free and clear of all taxes, liens, pre-emptive rights, rights of first
refusal and subscription rights, other than rights and restrictions under this
Agreement, the applicable Non-Control Agreement, if any, and applicable state
and federal securities Laws.


 


(b)           Subject to the
authorization of the Bankruptcy Court, which shall be contained in the entry of
the Confirmation Order, and the expiration or waiver by the Bankruptcy Court of
the 14-day period set forth in Bankruptcy Rule 3020(e) following
entry of the Confirmation Order, when the GGO Shares and the GGO Warrants are
issued, the GGO Shares and GGO Warrants shall be duly and validly authorized,
duly and validly issued, fully paid and non-assessable and free and clear of
all taxes, liens, pre-emptive rights, rights of first refusal and subscription
rights, other than rights and restrictions under this Agreement and under
applicable state and federal securities Laws. 
When the shares of GGO Common Stock issuable upon the exercise of the
GGO Warrants are issued and delivered against payment therefor, the shares of
GGO Common Stock shall be duly and validly issued, fully paid and
non-assessable and free and clear of all taxes, liens, pre-emptive rights,
rights of first refusal and subscription rights, other than rights and
restrictions under this Agreement and under applicable state and federal
securities Laws.


 


SECTION 3.6         No Conflict.


 


(a)           Subject to (i) the
receipt of the consents set forth on Section 3.6 of the Company Disclosure
Letter, (ii) such authorization as is required by the Bankruptcy Court or
the Bankruptcy Code, which shall be contained in the entry of the Confirmation
Order, and the expiration, or waiver by the Bankruptcy Court, of the 14-day
period set forth in Bankruptcy Rule 3020(e) following entry of the
Confirmation Order, (iii) any provisions of the Bankruptcy Code that override,
eliminate or abrogate such consents or as may be ordered by the Bankruptcy
Court and (iv) the ability to employ the alternatives contemplated by Section 2.1
of the Agreement, the 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).


 


12

















 


(b)           Subject to the
entry of the Approval Order, (i) the issuance of the Warrants (assuming
the accuracy of the representations of each Purchaser contained in Exhibit D)
and (ii) the performance by the Company of its respective obligations
under the Approval Order and compliance by the Company with all of the
provisions thereof (x) shall not conflict with, or result in a breach or
violation of, any of the terms or provisions of, or constitute a default under,
or result in the acceleration of, or the creation of any lien under, or give
rise to any termination right under, any Contract, (y) shall not result in
any violation or breach of any terms, conditions or provisions of the
certificate of incorporation or bylaws of the Company, or the comparable
organizational documents of the Company’s Subsidiaries, and (z) shall not
conflict with or result in any violation or breach of, or any termination or
impairment of any rights under, any statute or any license, authorization,
injunction, judgment, order, decree, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties or assets, except, in the
case of each of clauses (x) and (z) above, for any such conflict,
breach, acceleration, lien, termination, impairment, failure to comply, default
or violation that would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect.


 


SECTION 3.7         Consents and
Approvals.


 


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


 


(b)           No consent, approval, authorization, order,
registration or qualification of or with any Governmental Entity having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective properties is required for (1) the issuance and delivery of the
Warrants and (2) the performance of and compliance by the Company with all
of the provisions of the Approval Order except (A) the entry of the
Approval Order, (B) filings required under, and compliance


 


13

















 


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.


 


(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


 


14

















 


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.


 


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


 


15

















 


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 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


 


16

















 


operations,
(iv) none of the Company and its Subsidiaries have released Hazardous
Materials on any real property in a manner that would reasonably be expected to
result in an environmental claim or liability against the Company or any of its
Subsidiaries or Affiliates, (v) none of the Company Properties is the
subject of any pending, or, to the Knowledge of the Company, threatened, legal
proceeding alleging any liability, responsibility, or violation under any
Environmental Laws, and (vi) to the Knowledge of the Company, there has
been no release of Hazardous Materials on, from, under, or at any of the
Company Properties that would reasonably be expected to result in an
environmental claim or liability against the Company or any of its Subsidiaries
or Affiliates.


 


SECTION 3.15       Company Benefit
Plans.


 


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


 


(b)           Except as would not, individually or in the
aggregate, have a Material Adverse Effect, with respect to each Company Benefit
Plan that is subject to Title IV or Section 302 of ERISA or Section 412
or 4971 of the Code:   (A) no
Company Benefit Plan has failed to satisfy the minimum funding standard (within
the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA)
applicable to such Company Benefit Plan, whether or not waived and no
application for a waiver of the minimum funding standard with respect to any
Company Benefit 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


 


17

















 


employee
contributions required by Law or by the terms of the Foreign Plan have been
made, and all liabilities of the Company and its Significant Subsidiaries have
been satisfied, or, in each case accrued, by the Company and its Significant
Subsidiaries in accordance with generally accepted accounting principles, and (2) the
Company and its Significant Subsidiaries are in compliance with all
requirements of applicable Law and the terms of such Foreign Plan; (B) as
of the Effective Date, the fair market value of the assets of each funded
Foreign Plan, or the book reserve established for each Foreign Plan, together
with any accrued contributions, is sufficient to procure or provide for the
accrued benefit obligations with respect to all current and former participants
in such Foreign Plan determined on an ongoing basis (rather than on a plan
termination basis) according to the actuarial assumptions and valuations used
to account for such obligations as of the Effective Date in accordance with
applicable generally accepted accounting principles; and (C) the Foreign
Plan has been registered as required and has been maintained in good standing
with applicable regulatory authorities.


 


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


 


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


 


18






 












 


any
person (other than this Agreement) that would give rise to a valid claim
against the Company or any of its Subsidiaries for an investment banking fee,
finder’s fee or like payment in respect of the sale of the Shares contemplated
by this Agreement.  None of the Company
or any of its Subsidiaries is a party to any contract, agreement or
understanding with any Person that would give rise to a valid claim against any
Purchaser for a brokerage commission, finder’s fee, investment banking fee or
like payment in connection with the transactions contemplated by this
Agreement.


 


SECTION 3.20                    Real and
Personal Property.


 


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


 


(b)                                 Except (i) for such
breach of this Section 3.20(b) as may be caused fully or substantially
by the third party member or partner in any Joint Venture, without the
Knowledge or consent of the Company or any of its Subsidiaries or (ii) as
would not individually or in the aggregate be reasonably expected to have a
Material Adverse Effect, the Company or one of its Subsidiaries owns good and
valid fee simple title or valid and enforceable leasehold interests (except
with respect to the Company’s right to reject any such ground lease as part of
a Bankruptcy plan of reorganization for the remaining Debtor entities and
subject to applicable 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


 


19

















 


current
title insurance commitments or surveys made available to each Purchaser, (vi) Encumbrances
on the landlord’s fee interest at any Company Property where the Company or its
Subsidiary is the tenant under any ground lease, provided that, except as
disclosed to each Purchaser in Section 3.20(b)(ii) of the
Company Disclosure Letter, neither the Company nor any of its Subsidiaries have
received a notice indicating the intention of the landlord under such ground
lease, or of any other Person, to (1) exercise a right to terminate such
ground lease, evict the lessee or otherwise collect the sub-rents thereunder,
or (2) take any other action that would be reasonably likely to result in
a termination of such ground lease, (vii) any cashiers’, landlords’,
workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens
and other similar liens (1) incurred in the ordinary course of business
which (A) are being challenged in good faith by appropriate proceedings
and for which a sufficient and appropriate reserve has been set aside for the
full payment thereof or (B) have been otherwise fully bonded and
discharged of record or for which a sufficient and appropriate reserve has been
set aside for the full payment thereof or (2) disclosed on Section 3.20(b)(i) of
the Company Disclosure Letter and (viii) any other easements,
rights-of-way, restrictions (including zoning restrictions), covenants,
encroachments, protrusions and other similar charges or encumbrances, and title
limitations or title defects, if any, that (I) are customary for office,
industrial, master planned communities and retail properties or (II) individually
or in the aggregate, would not be reasonably expected to have a Material
Adverse Effect.  Other than as set forth
on Section 3.20(b)(ii) of the Company Disclosure Letter,
neither the Company nor any of its Subsidiaries has received a written notice
of a material default, beyond any applicable grace and cure periods, of or
under any Permitted Title Exceptions, except (w) as may have been caused
fully or substantially by the third party member or partner in any Joint
Venture, without the Knowledge or consent of the Company or any of its
Subsidiaries (x) as a result of the filing of the Bankruptcy Cases, (y) where
the Permitted Title Exceptions are in and of themselves evidence of default
(such as mechanics’ liens and recorded notices of default) or (z) as would
not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; provided, however, that where the
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


 


20

















 


where
such default may grant the landlord under such ground lease the right to
terminate such ground lease, evict the lessee or otherwise collect the
sub-rents thereunder) at such Company Ground Lease Property beyond any
applicable grace and cure periods, except (x) as would not, individually
or in the aggregate, be reasonably expected to have a Material Adverse Effect, (y) as
may be caused fully or substantially by the third party member or partner in
any Joint Venture, without the Knowledge or consent of the Company or any of
its Subsidiaries and (z) with respect to any Company Ground Lease Property
which is leased by a Subsidiary of the Company which has consummated a plan of
reorganization in the Bankruptcy Cases, all such material defaults at such
Company Ground Lease Property which existed prior to the effective date of such
Person’s plan of reorganization have been or will be cured in accordance with
such plan.  As used herein the term “Company
Ground Lease Property” shall mean any Company Property having a fair market
value (in the reasonable determination of the Company) in excess of $25,000,000
which is leased by a Subsidiary of the Company as tenant pursuant to a ground
lease.  With respect to the defaults
referenced in clause (z) above, the Bankruptcy Court approved the Debtors’
assumption of the applicable ground leases and the fixed cure amounts for such
defaults which predated assumption; provided, however, nothing
contained herein precludes any Person from raising issues in the future with
respect to defaults that may have predated such assumption.


 


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


 


(f)                                    Except as set forth on Section 3.20(f) of
the Company Disclosure Letter, to the Company’s Knowledge, as of February 15,
2010, (i) each Material Lease is in full force and effect, (ii) no
tenant is in arrears in the payment of rent, additional rent or any other
material charges due under any Material Lease, and no tenant is materially in
default in the performance of any other obligations under any Material Lease, (iii) no
bankruptcy or insolvency proceeding has been commenced (and is continuing) by
or against any tenant under any Material Lease, and (iv) neither the
Company nor any of its Subsidiaries has received a written notice from a
current tenant under any Material Lease exercising a right to terminate or
otherwise cancel its Material Lease (y) as a result of or in connection
with the termination or cancellation of any other lease, sublease, license or
occupancy agreement for space at any Company Property (each, a “Company
Property Lease”), or (z) as a result of or in connection with any
other tenant that occupies, or had previously occupied, another Company
Property Lease, allowing, or having had allowed, all or any portion of the
premises leased pursuant to such other Company Property Lease to “go dark” or
otherwise be abandoned or vacated; except, (A) in the case of each of
clauses (i), (ii) (iii) and (iv) above, as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (B) as a result of the filing of the Bankruptcy Cases or
in connection with any Bankruptcy Court approved process and (C) as may
have been caused fully or substantially by the third party member or partner in
any Joint Venture, without the Knowledge or consent of the Company or its
Subsidiaries.  “Material Lease”
means for any Company Property any lease in which the Company or its
Subsidiaries is the landlord, and all amendments, modifications, supplements,
renewals, exhibits, schedules, extensions and


 


21

















 


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 (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


 


22

















 


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 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(g)(h).


 


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


 


(a)                                  Except in cases where the
failure of any of the following to be true would not result in a Material
Adverse Effect: (i) the Company and each of its Significant Subsidiaries
have filed all Tax Returns required to be filed by applicable Law prior to the
date hereof; (ii) all such Tax Returns were true, complete and correct in
all respects and filed on a timely basis (taking into account any applicable
extensions); (iii) the Company and each of its Significant Subsidiaries
have paid all amounts of Taxes that are due, claimed or assessed by any taxing
authority to be due for the periods covered by such Tax Returns, other than any
Taxes for which adequate reserves (“Adequate Reserves”) have been
established in accordance with GAAP or a claim has been filed in the Bankruptcy
Cases; and (iv) all adjustments of federal U.S. Tax liability of the
Company and its Significant Subsidiaries resulting from completed audits or
examinations have been reported to appropriate state and local taxing
authorities and all resulting Taxes payable to state and local taxing
authorities have been paid.  “Taxes”
means any U.S.


 


23

















 


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
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.


 


24

















 


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


 


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


 


SECTION 3.22                    Material
Contracts.   Except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, each Material Contract that shall survive the
Bankruptcy Cases is valid and binding on the Company or any of its
Subsidiaries, as applicable, and, to the Knowledge of the Company, on each
other Person party thereto, and is in full force and effect.  Other than as a result of the commencement of
the Bankruptcy Cases, each of the Company and its Subsidiaries has performed,
in all material respects, all obligations required to be performed by it under
each Material Contract that shall survive the Bankruptcy Cases, except, in each
case, as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.  Other
than those caused as a result of the filing of the Bankruptcy Cases, neither
the Company nor any of its Significant Subsidiaries is in breach or default of
any Material Contract to which it is a party and which shall survive the
Bankruptcy Cases, except, in each case, as would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.  The Company has made available to each
Purchaser true, accurate and complete copies of the Material Contracts as of
the date of this Agreement, except for those Material Contracts available to
the public on the website maintained by the SEC.  To the Knowledge of the Company, no party to
any Material Contract that shall survive the Bankruptcy Cases has given written
notice of any action to terminate, cancel, rescind or procure a judicial
reformation of such Material Contract or any material provision thereof, which
termination, cancellation, rescission or reformation would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.  For the avoidance of doubt,
Material Contracts do not include intercompany contracts.


 


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


 


(a)                                  The Company and
the Company Board have taken all appropriate and necessary actions to ensure
that the ownership limitations set forth in Article IV of the Company’s
certificate of incorporation shall not apply to (i) the acquisition of
beneficial ownership by any Purchaser and any other member of the Purchaser
Group of the Warrants and the shares of Common Stock issuable upon exercise of
the Warrants, (ii) any antidilution adjustments to those Warrants pursuant
to the Warrant Agreement and (iii) any Common Stock that any Purchaser or
any member of the Purchaser Group may be deemed to own by no actions of its own
and the acquisition of beneficial ownership of up to an additional amount
totaling 1.786% of the issued and outstanding shares of Common Stock, in the
aggregate, by any Purchaser or any other member of the Purchaser Group; provided,
however, that such exception to the ownership


 


25

















 


limitations
are only effective as to any Purchaser or a member of the Purchaser Group so
long as (i) the Company has received executed copies of the representation
certificate contained in Exhibit D from such Purchaser or any such
member of the Purchaser Group, it being understood that a member of the
Purchaser Group (not otherwise a Purchaser hereunder) shall be required to
provide such representations at such times and only at such times as such
member of the Purchaser Group “beneficially owns” or “constructively owns” (as
such terms are defined in the certificate of incorporation of the Company)
Common Stock or New Common Stock in excess of the relevant ownership limit set
forth in the certificate of incorporation of the Company or any stock or other
equity interest owned by such member of the Purchaser Group in a tenant of the
Company would be treated as constructively owned by the Company and (ii) the
representations so provided are true, correct and complete as of the date made
and continue to be true, correct and complete.


 


(b)                                 The Company
Board has taken all action necessary to render inapplicable to each Purchaser
the restrictions on “business combinations” set forth in Section 203 of
the Delaware General Corporation Law and, to the knowledge of the Company, any
similar “moratorium,” “control share,” “fair price,” “takeover” or “interested
stockholder” law applicable to transactions between each Purchaser and the
Company.


 


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


 


ARTICLE IV


 


REPRESENTATIONS
AND WARRANTIES OF PURCHASER


 


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


 


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


 


SECTION 4.2                          Power and
Authority.   Purchaser
has the requisite power and authority to enter into, execute and deliver this
Agreement and to perform its obligations hereunder and has


 


26

















 


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


 


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


 


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


 


SECTION 4.5                          Consents and
Approvals.   No
consent, approval, order, authorization, registration or qualification of or
with any Governmental Entity having jurisdiction over 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.


 


27
















 


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


 


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


 


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


 


SECTION 4.12                    REIT
Representations.   The
representations provided by Purchaser and, to the extent applicable, its
Affiliates, members or Affiliates of members, set forth on Exhibit D are
true, correct and complete as of the date hereof, and shall be true as of the
date of the issuance of the Warrants and as of the Closing Date, it being
understood that Purchaser’s Affiliates, members or Affiliates of members shall
be required to provide such representations 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,


 


28

















 


Purchaser
acknowledges that no representations or warranties are made with respect to any
projections, forecasts, estimates, budgets, plans or prospect information that
may have been made available to Purchaser or any of its representatives.


 


ARTICLE V 


 


COVENANTS
OF THE COMPANY AND PURCHASER


 


SECTION 5.1                          Bankruptcy
Court Motions and Orders.


 


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


 


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


 


(c)                                  If the Approval Order shall
be appealed by any Person (or a petition for certiorari or motion for
reconsideration, amendment, clarification, modification, vacation, stay,
rehearing 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 (1) 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”)
evidencing 42,857,143 warrants (the “Warrants”) each of which entitles
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.  The Warrants and the Plan shall provide that
upon the effectiveness of the Plan, the Warrants shall be


 


29

















 


exchanged
for and converted into the right to receive (i) 42,857,143 warrants each
of which entitles the holder to purchase one (1) share of New Common Stock (the
“New Warrants”) at an initial purchase price of $10.00 per share subject
to adjustment as provided in the underlying warrant agreement and (ii) 20,000,000
warrants each of which entitles the holder to purchase one (1) share of
GGO Common Stock (the “GGO Warrants”) at a price of $5.00 per share
subject to adjustment as provided in the warrant agreement, each in accordance
with the terms set forth in the applicable warrant agreement.


 


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


 


SECTION 5.6                          Access to
Information. Subject to applicable Law and the Company’s
receipt of customary assurances of confidentiality by each Purchaser, upon
reasonable notice, the Company shall afford each Purchaser and its directors,
officers, employees, investment bankers, attorneys, accountants and other
advisors or representatives, reasonable access during normal business hours,
throughout the period prior to the Effective Date, to its employees, books,
contracts and records and, during such period, the Company shall (and shall
cause its Subsidiaries to) furnish promptly to each Purchaser such information
concerning its business, properties and personnel as may reasonably be
requested by such Purchaser, including copies of all monthly financial
information provided to its lenders under its existing debtor in possession
financing agreements; provided, that, notwithstanding anything to the
contrary, the Company shall not be required to share confidential information
relating to any Competing Transaction except as contemplated by Section 5.7.


 


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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 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 or (5) as set
forth on Section 5.9(a) of the Company Disclosure Letter) (the
“Proposed Securities”), each Purchaser shall have the right to acquire
from the Company (the “Subscription Right”) for the same price (net of
any underwriting discounts or sales commissions or any other discounts or fees
if not purchasing from or through an underwriter, placement agent or broker)
and on the same terms as such Proposed Securities are proposed to be offered to
others, up to the amount of such Proposed Securities in the aggregate required
to enable it to maintain its aggregate proportionate New Common Stock-equivalent
interest in the Company on a Fully Diluted Basis determined in accordance with
the following sentence, in each case, subject to such limitations as may be
imposed by applicable Law or stock exchange rules.  The amount of such Proposed Securities that
each Purchaser shall be entitled to purchase in the aggregate in any offering
pursuant to the above shall (subject to such limitations as may


 


31

















 


be imposed by applicable Law or stock exchange rules) be determined by
multiplying (x) the total number of such offered shares of Proposed
Securities by (y) a fraction, the numerator of which is the number of
shares of New Common Stock held by such Purchaser on a Fully Diluted Basis as
of the date of the Company’s notice pursuant to Section 5.9(b) in
respect of the issuance of such Proposed Securities, and the denominator of
which is the number of shares of New Common Stock then outstanding on a Fully
Diluted Basis. For the avoidance of doubt, the actual amount of securities to
be sold or offered to each Purchaser pursuant to its exercise of the
Subscription Right hereunder shall be proportionally reduced if the aggregate
amount of Proposed Securities sold or offered is reduced. Any offers and sales
pursuant to this Section 5.9 in the context of a registered public
offering shall be conditioned upon reasonably acceptable representations and
warranties of the applicable Purchaser regarding its status as the type of
offeree to whom a private sale can be made concurrently with a registered
public offering in compliance with applicable securities Laws.


 


(ii)                                  Notice. In the event
the Company proposes to offer Proposed Securities, it shall give each Purchaser
written notice of its intention, describing the estimated price (or range of
prices), anticipated amount of securities, timing and other terms upon which
the Company proposes to offer the same (including, in the case of a registered
public offering and to the extent possible, a copy of the prospectus included
in the registration statement filed with respect to such offering), no later
than 10 Business Days after the commencement of marketing with respect to such
offering or after the Company takes substantial steps to pursue any other
offering. Each Purchaser shall have three (3) Business Days from the date
of receipt of such a notice to notify the Company in writing that it intends to
exercise its Subscription Right and as to the amount of Proposed Securities
such Purchaser desires to purchase, up to the maximum amount calculated
pursuant to Section 5.9(a)(i). In connection with an underwritten
public offering, such notice shall constitute a non-binding indication of
interest to purchase Proposed Securities at such a range of prices as such
Purchaser may specify and, with respect to other offerings, such notice shall
constitute a binding commitment of such Purchaser to purchase the amount of
Proposed Securities so specified at the price and other terms set forth in the
Company’s notice to such Purchaser.  The
failure of such Purchaser to so respond within such three (3) Business Day
period shall be deemed to be a waiver of the Subscription Right under this Section 5.9
only with respect to the offering described in the applicable notice. In
connection with an underwritten public offering or a private placement, each
Purchaser shall further enter into an agreement (in form and substance
customary for transactions of this type) to purchase the Proposed Securities to
be acquired by it contemporaneously with the execution of any underwriting
agreement or purchase agreement entered into with the Company, the underwriters
or initial purchasers of such underwritten public offering or private
placement, and the failure of such Purchaser to enter into such an agreement at
or prior to such time shall constitute a waiver of the right to purchase the
applicable portion of the Proposed Securities in respect of such offering.


 


(iii)                               Purchase
Mechanism. If a Purchaser exercises its Subscription Right provided
in this Section 5.9, the closing of the purchase of the Proposed
Securities with respect to which such right has been exercised shall take place
concurrently with the sale


 


32

















 


to the other investors in the applicable offering, which period of time
for the closing of the purchase of the Proposed Securities with respect to
which such right has been exercised shall be extended for a maximum of 180 days
in order to comply with applicable Laws (including receipt of any applicable
regulatory or stockholder approvals).  The Company and each Purchaser shall use its
reasonable best efforts to secure any regulatory or stockholder approvals or
other consents, and to comply with any Law necessary in connection with the
offer, sale and purchase of, such Proposed Securities.


 


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


 


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


 


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


 


(vii)                           [Intentionally omitted.]


 


(viii)                        General. Notwithstanding
anything herein to the contrary, (A) if (1) a Purchaser exercises its
Subscription Right pursuant to this Section 5.9 and is unable to
complete the purchase of the Proposed Securities concurrently with the sales to
the other investors in the applicable offering as contemplated by Section 5.9(a)(iii) due
to applicable regulatory or stockholder approvals and (2) the Company or
the Company Board determines in good faith that any delay in completion of an
offering in respect of which such Purchaser is entitled to Subscription Rights
would materially impair the financing objective of such offering, the Company
may proceed with such offering without the participation of such Purchaser in
such offering, in which event the Company and such Purchaser shall promptly
thereafter agree on a process otherwise consistent with this Section 5.9
as would allow such Purchaser to purchase, at the same price (net of any


 


33

















 


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


 


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


 


(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.


 


34

















 


SECTION 5.10                    [Intentionally
Omitted.]


 


SECTION 5.11                    Notification of
Certain Matters.


 


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


 


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


 


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


 


SECTION 5.12                    Further
Assurances. From and after the Closing, the Company shall (and
shall cause each of its Subsidiaries to) execute and deliver, or cause to be
executed and 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                    Hughes Heirs
Obligations. (a) In the event holders of Hughes Heirs
Obligations receive shares of New Common Stock on account of such Hughes Heirs
Obligations


 


35

















 


in
the Plan, the number of shares of New Common Stock otherwise available for
distribution on the Effective Date under the Plan in the Equity Exchange shall
be reduced by the number of shares of New Common Stock issued or issuable to
such holders of Hughes Heirs Obligations.


 


(b)                                 In the event holders of
Hughes Heirs Obligations receive shares of GGO Common Stock on account of such
Hughes Heirs Obligations in the Plan, the number of shares of GGO Common Stock
otherwise available for distribution on the Effective Date under the Plan in
the GGO Share Distribution shall be reduced by the number of shares of GGO
Common Stock issued or issuable to such holders of Hughes Heirs Obligations.


 


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 the (1) acquisition by members of the
Purchaser Group of the Warrants, the underlying securities thereof, (2) any
antidilution adjustments to those Warrants pursuant to the Warrant Agreement, (3) any
shares of New Common Stock that a Purchaser or a member of its Purchaser Group
may be deemed to own by no actions of its own and (4) up to an additional
amount totaling 1.786% of the issued and outstanding shares of Common Stock in
the aggregate by the Purchaser Group, (ii) no Purchaser, or any member of
the Purchaser Group, shall be deemed to be an Acquiring Person (as defined in
the Rights Agreement), (iii) neither a Shares Acquisition Date (as defined
in the Rights Agreement) nor a Distribution Date (as defined in the Rights
Agreement) shall be deemed to occur and (iv) the Rights (as defined in the
Rights Agreement) shall not separate from the Common Stock, in each case under
(ii), (iii) and (iv), as a result of the acquisition by members of the
Purchaser Group of the Warrants, the underlying securities thereof and the
acquisition of beneficial ownership of up to an additional amount totaling
1.786% of the issued and outstanding shares of Common Stock in the aggregate by
the Purchaser Group.


 


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


 


36

















 


“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 applicable Non-Control Agreement,
if any.


 


(d)                                 In the event GGO adopts a
rights plan analogous to the Rights Agreement on or prior to the Closing, the
Plan shall provide that (i) GGO’s Rights Agreement shall be inapplicable
to this Agreement and the transactions contemplated hereby, (ii) no
Purchaser, nor any other member of its Purchaser Group, shall be deemed to be
an Acquiring Person (as defined in the Rights Agreement) whether in connection
with the acquisition of shares of GGO Common Stock or GGO Warrants or the
shares issuable upon exercise of the GGO Warrants, (iii) neither a Shares
Acquisition Date (as defined in the Rights Agreement) nor a Distribution Date
(as defined in the Rights Agreement) shall be deemed to occur and (iv) the
Rights (as defined in the Rights Agreement) will not separate from the GGO
Common Stock, in each case under (ii), (iii) and (iv), as a result of the
execution, delivery or performance of this Agreement, or the consummation of
the transactions contemplated hereby including the acquisition of shares of GGO
Common Stock by any Purchaser or other member of the Purchaser Group after the
date hereof as otherwise permitted by this Agreement or the GGO Warrants.


 


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


 


37
















 


SECTION 5.16     Closing Date Net Debt.


 


 


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


 


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


 


(d)                                 It is the intention of the parties that
releases from the Reserve are not intended to alter the allocation of value
between GGO and the Company. 
Accordingly, the Plan shall provide that if there is a Reserve Surplus
Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory
Note, the principal amount of the GGO Promissory Note shall be reduced (not
below zero) (i) by 80% of the balance of the Reserve Surplus Amount
corresponding to any Net Debt Surplus Amount and (ii) if after application
of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus
Amount remains, by 100% of the remaining balance of the Reserve Surplus
Amount.  In the event that any party
requests an equitable adjustment to this formula, the other parties shall
consider the request in good faith.


 


38

















 


(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 31st day following
the Closing Date.


 


(f)                                   The Plan and the agreements relating to
the GGO Share Distribution shall provide that from and after the Closing, the
Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any
and all losses, claims, damages, liabilities and reasonable expenses to which
GGO and its Subsidiaries may become subject, in each case solely to the extent
directly attributable to MPC Taxes actually paid at or after the Effective
Date; provided, that in no event shall the Company be required to make any
indemnification payment hereunder to the extent such payment would result in
aggregate payments under this Section 5.16(f) that would
exceed the lower of (i) $303,750,000 and (ii) the then effective
Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that
if GGO or its Affiliates receives any refund or realizes any reduction of its
Tax liability in respect of the MPC Assets for which it has received a payment
or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal
to such refund or reduction in Tax liability (less any costs or Taxes incurred
with respect to the receipt thereof) to the Reorganized Company within ten
(10) Business Days of the receipt or realization thereof.


 


(g)                                  If GGO is obligated to pay MPC Taxes with
respect to the tax year 2010 and the Company is not then obligated to indemnify
GGO as a consequence of the Indemnity Cap, then solely with respect to such
payments, the Company shall pay such amount of MPC Taxes and the principal
amount of the GGO Promissory Note shall be increased by the amount of such
payment and if at such time no GGO Promissory Note is outstanding, on the date
of any such payment, GGO shall issue in favor of the Company a promissory note
in the aggregate principal amount of such payment on the same terms as the GGO
Promissory Note.


 


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.


 


39

















 


SECTION 6.3                     Plan Support. 
From and after the date of the Approval Order until the earliest to
occur of (i) the Effective Date, (ii) the termination of this
Agreement and (iii) the date the Company or any Subsidiary of the Company
makes a public announcement, enters into an agreement or files any pleading or
document with the Bankruptcy Court, in each case, evidencing its intention to
support any Competing Transaction, or the Company or any Subsidiary of the
Company enters into a Competing Transaction (such date, the “Unrestricted
Date”), each Purchaser agrees (unless otherwise consented to by the
Company) (provided that (x) 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


 


40

















 


ISSUER, THE ISSUER
RECEIVES AN OPINION OF LEGAL COUNSEL SATISFACTORY TO THE ISSUER THAT NO
VIOLATION OF THE ACT OR OTHER APPLICABLE LAWS WILL BE INVOLVED IN SUCH
TRANSACTION.


 


Certificates
evidencing the Shares (and shares issuable upon exercise of Warrants and New
Warrants) shall not be required to contain such legend (A) while a
registration statement covering the resale of the Shares is effective under the
Securities Act, or (B) following any sale 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 (i) above in this Section 6.4
but replacing references to (A) “the Company” with GGO, (B) “New
Common Stock” with GGO Common Stock, (C) “Shares” with “GGO Shares” and
(D) “Warrants” or “New Warrants” with GGO Warrants.


 


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


 


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


 


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”


 


41

















 


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


 


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


 


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 if the GGO Rights Offering shall have occurred)
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


 


42

















 


3.3, Section 3.5, Section 3.20(a) (except
for such inaccuracies in Section 3.20(a) caused by sales,
purchases or transfers of assets which have been effected in accordance with,
subject to the limitations contained in, and not otherwise prohibited by, the
terms and conditions in this Agreement, including, without limitation, this Article VII)
and Section 3.23 shall be true and correct at and as of the Closing
Date as if made at and as of the Closing Date (except for representations and
warranties made as of a specific date, which shall be true and correct only as
of such specific date), (ii) the representations and warranties of the
Company contained in Section 3.4 shall be true and correct (except
for de minimis inaccuracies) at
and as of the Closing Date as if made at and as of the Closing Date (except for
representations and warranties made as of a specific date, which shall be true
and correct (except for de minimis inaccuracies)
only as of such specific date) and (iii) the other representations and
warranties of the Company contained in this Agreement, disregarding all
qualifications and exceptions contained therein relating to “materiality” or
“Material Adverse Effect”, shall be true and correct at and as of the Closing
Date as if made at and as of the Closing Date (except for representations and
warranties made as of a specified date, which shall be true and correct only as
of the specified date), except for such failures to be true and correct that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect (it being agreed that the condition in this subclause
(iii) as it relates to undisclosed liabilities of the Company and its
Subsidiaries comprised of Indebtedness shall be deemed to be satisfied if the
condition in Section 7.1(p) is satisfied.  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 5.13
and Section 5.14(b), to the extent applicable, 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 not
reinstated any Specified Debt without giving each holder of Specified Debt the
option to receive cash in an amount equal to par plus unpaid pre-petition and
post-petition interest accrued at the stated non-default rate (or contract rate
in the case of Class M).


 


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


 


43

















 


(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 (i) the GGO Common Share
Amount of shares of GGO Common Stock (plus (A) a number of shares of GGO
Common Stock equal to the sum of the Backstop Consideration and the backstop
consideration issuable to the Pershing Purchasers and the Brookfield Consortium
Members pursuant to the other Investment Agreements, (B) 20,000,000 shares
of GGO Common Stock issuable upon exercise of the GGO Warrants, (C) 60,000,000
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), plus (ii) if the GGO Rights Offering shall have occurred,
50,000,000 shares of GGO Common Stock issued pursuant to the GGO Rights
Offering in accordance with this Agreement.


 


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


 


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


 


44

















 


(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 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.


 


(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. If the GGO Rights Offering
shall have occurred, 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, upon the consummation of the Plan 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


 


45

















 


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 $500,000,000 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).


 


(o)                                 [Intentionally
Omitted.]


 


(p)                                 Debt of the
Company. Immediately following the Closing after giving effect to the Plan,
the aggregate outstanding Proportionally Consolidated Debt shall not exceed
$22,100,000,000 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
under the Plan (such amounts reinstated, the “Reinstated Amounts”) minus
(iii) the amount of Proportionally Consolidated Debt attributable to
Identified Assets contributed to GGO pursuant to Section 2.1(a),
minus (iv) the amount of Proportionally Consolidated Debt attributable to
assets other than Identified Assets contributed to GGO pursuant to Section 2.1(a) minus
(v) the principal and/or liquidation preference of the TRUPS and the
UPREIT Units not reinstated, plus (vi) in the event the Closing occurs
prior to September 30, 2010, the amount of scheduled amortization on
Proportionally Consolidated Debt (other than Corporate Level Debt) from the
Closing Date to September 30, 2010 that otherwise would have been paid by September 30,
2010, minus (vii) in the event the Closing occurs on or after September 30,
2010, the amount of actual amortization paid on Proportionally Consolidated
Debt (other than Corporate Level Debt) from September 30, 2010 to the
Closing Date, plus (viii) (A) the excess of the aggregate principal
amount of new Debt incurred to refinance existing Debt in accordance with Section 7.1(r)(vii) hereof
over the principal amount of the Debt so refinanced and (B) new Debt
incurred to finance unencumbered Company Properties and Non-Controlling
Properties after the date of this Agreement and on or prior to the Closing
(such amounts contemplated by clauses (A) and (B) collectively, the “Additional
Financing”) plus (ix) the amount of other principal paydowns,
writedowns and resulting impact on amortization (or payments in the anticipated
amortization schedule with respect to Fashion Show Mall (Fashion Show Mall
LLC), The Shoppes at the Palazzo and Oakwood Shopping Center (Gretna, LA))
currently anticipated to be made by the Company in connection with
refinancings, or completion of negotiations in respect of its property level
Debt which the Company determines in good faith are not actually required to be
made prior to Closing (“Anticipated Debt Paydowns”).


 


(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 up to 50,000,000 shares of New Common Stock issued in
Liquidity Equity Issuances, plus 42,857,143 shares of New Common Stock issuable
upon the exercise of the New Warrants and plus the shares of New Common Stock
issuable upon the exercise of those certain warrants issued to the Brookfield
Consortium Members pursuant to the Brookfield Agreement and to the Pershing
Purchasers


 


46






 












 


pursuant
to the Pershing Agreement and 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; provided, that if Indebtedness under the
Rouse Bonds or the Exchangeable Notes is reinstated under the Plan or the
Company shall have incurred New Debt, or between the date of this Agreement and
the Closing Date the Company shall have sold for cash real property assets
outside of the ordinary course of business (“Asset Sales”), the Share
Cap Number shall be reduced by the quotient (rounded up to the nearest whole
number) obtained by dividing (x) the sum of Reinstated Amounts and the net
cash proceeds to the Company from Asset Sales in excess of $150,000,000 and the
issuance of New Debt 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
with respect to joint ventures existing on the date


 


47

















 


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)                              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 or (D) as set
forth on Section 7.1(u) of the Company Disclosure Letter);


 


(vii)                           none of the
Company Properties or Identified Assets shall have been mortgaged, or pledged,
nor shall the owner or lessee thereof have granted a lien, mortgage, pledge,
security interest, charge, claim or other Encumbrance relating to debt
obligations of any kind or nature on, or otherwise encumbered, any Company
Property or Identified Assets except in the ordinary course of business
consistent with past practice, other than encumbrances of Company Properties or
Identified Assets of Debtors in connection with (A) a restructuring of
existing indebtedness for borrowed money related to any such Company Property
or Identified Asset with the existing lender(s) thereof or (B) a
refinancing of existing indebtedness for borrowed money related to any Company
Property or Identified Asset in an amount not to exceed $300,000,000 (the “Refinance
Cap”), provided that (x) the Refinance Cap shall not apply to a
refinancing of the existing first lien indebtedness secured by the Fashion Show
Mall, (y) in the event that a refinancing is secured by mortgages, deeds
of trust, deeds to secure debt or indemnity deeds of trust encumbering multiple
Company Properties and Identified Assets, the proceeds


 


48

















 


of such refinancing shall not exceed an amount equal to the Refinance
Cap multiplied by the number of Company Properties and Identified Assets so
encumbered, and (z) in connection with refinancing the indebtedness of a
Company Property or Identified Asset owned by a Joint Venture, the Refinance
Cap shall apply with respect to the aggregate share of such indebtedness which
is allocable to, or guaranteed by (but without duplication), the Company and/or
its Subsidiaries;


 


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


 


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


 


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


 


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


 


(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 or (C) as set forth on Section 7.1(u) of
the Company Disclosure Letter), 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), (2) following such
issuance or sale, (x) no Person (other than (i) the other Initial
Investors pursuant to the other Investment Agreements and (ii) any
institutional underwriter or initial purchaser acting in an underwriter
capacity in an underwritten offering) shall, after giving


 


49

















 


effect
to such issuance or sale would beneficially own more than 10% of the Common
Stock of the Company on a Fully Diluted Basis, and (y) no five Persons
(other than the Purchasers, the 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 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.


 


(w)                               GGO Promissory
Note.   The GGO Promissory Note, if
any, shall have been issued by GGO in favor of the Reorganized Company.


 


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


 


50

















 


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, if the GGO Rights Offering shall have occurred) 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.


 


(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.


 


51

















 


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


 


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


 


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


 


52

















 


(m)                             GGO Promissory Note.  
The GGO Promissory Note, if any, shall have been issued by GGO in favor
of the Reorganized Company.


 


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 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;


 


53

















 


(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 the Warrants or a modification of the Warrants that adversely affects any
Purchaser;


 


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


 


(v)                                 if there has been a breach by the Company
of any representation, warranty, covenant or agreement of the Company contained
in this Agreement or the Company shall have taken any action which
(A) would result in a failure of a condition set forth in Article VII
and (B) cannot be cured prior to the Termination Date, after written
notice to the Company of such breach and the intention to terminate this
Agreement pursuant to this Section; provided, however, that the
right to terminate this Agreement under this Section shall not be
available to any Purchaser if any Purchaser has breached in any material
respect its obligations under this Agreement;


 


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


 


(vii)                           if the Company or any Subsidiary of the
Company issues any shares of Common Stock or New Common Stock (or securities
convertible into or exchangeable or exercisable for Common Stock or New Common
Stock) at a purchase price (or in the case of securities that are convertible
into or exchangeable or exercisable for, or linked to the performance of,
Common Stock or New Common Stock, the conversion, exchange, exercise or
comparable price) of less than $10.00 per share (net of all underwriting and
other discounts, fees and any other compensation and related expenses) of
Common Stock or New Common Stock or converts any claim against any of the
Debtors into New


 


54

















 


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 or
(D) the issuance of shares as set forth on Section 7.1(u) of
the Company Disclosure Letter);


 


(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”); or


 


(xi)                              prior to the issuance of the Warrants, if
the Company (A) makes a public announcement, enters into an agreement or
files any pleading or document with the Bankruptcy Court, in each case,
evidencing its decision to support any Competing Transaction, or (B) the
Company or any Subsidiary of the Company enters into a definitive agreement
providing for a Competing Transaction or the Company provides notice to any
Purchaser of the Company’s or any of its Subsidiaries’ decision to enter into a
definitive agreement providing for a Competing Transaction pursuant to Section 5.7;


 


(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;


 


55

















 


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


 


(iv)                              if a Closing
Restraint is in effect.


 


SECTION 11.2              Effects of
Termination.


 


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


 


(b)                                 In the event of
a termination of this Agreement by the Company pursuant to Section 11.1(c)(iii),
the parties agree that the Warrants held by any member of the Purchaser Group
at the time of such termination (but no Warrants held by any other Person if
transferred as permitted hereunder) shall be deemed cancelled, null and void
and of no further effect.   The foregoing
shall be a term of the Warrants.


 


ARTICLE XII



 


DEFINITIONS


 


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


 


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


 


(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


 


56






 












 


determined
that Purchaser is unable to consummate such purchase contemplated by Section5.9(a)(iii) within
such 180 day period specified in Section 5.9(a)(iii).


 


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


 


(d)                                 “Brazilian
Entities” means those certain Persons in which the Company indirectly own
an interest which owns 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


 


57

















 


ownership
(within the meaning of Rules 13d-3 and 13d-5 promulgated under the
Exchange Act), directly or indirectly, of more than fifty percent (50%) of
either (A) the then-outstanding shares of capital stock of the Company or (B) the
combined voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors of the Company or (ii) there
occurs a direct or indirect sale, lease, exchange or transfer or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries on a consolidated basis (including securities of the entity’s
directly or indirectly owned Subsidiaries).


 


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


 


(k)                                  “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 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.


 


(l)                                     “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,


 


58

















 


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.


 


(m)                               “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.


 


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


 


(o)                                 “Competing
Transaction” means, other than the transactions contemplated by this Agreement
or the Plan Summary Term Sheet, or by the other Investment Agreements, any
offer or proposal relating to (i) a merger, consolidation, business
combination, share exchange, tender offer, reorganization, recapitalization,
liquidation, dissolution or similar transaction involving the Company or (ii) any
direct or indirect purchase or other acquisition by a “person” or “group” of
“beneficial ownership” (as used for purposes of Section 13(d) of the
Exchange Act) of, or a series of transactions to purchase or acquire, assets
representing 30% or more of the consolidated assets or revenues of the Company
and its Subsidiaries taken as a whole or 30% or more of the Common Stock of the
Company (or securities convertible into or exchangeable or exercisable for 30%
or more of the Common Stock of the Company) or (iii) any recapitalization
of the Company or the provision of financing to the Company, 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.


 


(p)                                 “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 in the amount established by the Bankruptcy Court, (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


 


59

















 


Net
Debt Amount W/O Reinstatement Adjustment and Permitted Claims Amounts as
determined through the process provided for in this Agreement shall be used),
and (ii) sets forth the Net Debt Excess Amount or the Net Debt Surplus
Amount, as applicable.


 


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


 


(r)                                    “Conversion
Shares” means (i) with respect to the Purchaser Group, a number of shares
of New Common Stock determined by dividing (x) an amount equal to (A) the
aggregate allowed amount (inclusive of prepetition and postpetition interest
fees and costs) of claims against the Debtors held by any member of such
Purchaser Group outstanding as of the Effective Date (the “Purchaser Group
Debt Holdings”) minus (B) the amount of cash actually received by the
holders of the Purchaser Group Holdings in respect thereof under the Plan by (y) the
Per Share Purchase Price and (ii) with respect to each Purchaser, its GGP
Pro Rata Share of the Conversion Shares.


 


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


 


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


 


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


 


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


 


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


 


(x)                                   “Essential
Assets” means Victoria Ward, Summerlin Master Planned Community, Summerlin
Centre and South Street Seaport unless otherwise agreed between each Purchaser
and the Company.


 


60

















 


(y)                                 “Excess
Surplus Amount” means the sum of (i) 100% or 80%, as applicable, of the
balance, if any, of the Reserve Surplus Amount (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) 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(c) 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) 80% of
the excess of the Net Debt Surplus Amount, if any, over the Hughes Amount.


 


(z)                                   “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.


 


(aa)                            “Excluded
Claims” means:


 


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


 


(ii)                                  except with
respect to Claims related to GGO or the assets or businesses contributed
thereto, prepetition and postpetition Claims for all ordinary course trade
payables for goods and services related to the operations of the Company and
its Subsidiaries (including, without limitation, ordinary course obligations to
tenants, anchors, vendors, customers, utility providers or forward contract
counterparties related to utility services, employee payroll, commissions,
bonuses and benefits (but excluding the Key Employee Incentive Plan approved by
the Bankruptcy Court pursuant to an order entered on October 15, 2009 at
docket no. 3126), insurance premiums, insurance deductibles, self insured
amounts and other obligations that are accounted for, consistent with past
practice prior to the Petition Date, as trade payables); provided, however,
that Claims or 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


 


61

















 


litigation audit response to Deloitte & Touche dated February 25,
2010, both have been made available to each Purchaser prior to close of
business on March 29, 2010 and other Claims and liabilities arising from
ordinary course litigation or potential litigation that was not included in
such schedule solely because the amount of estimated or asserted liabilities or
Claims did not meet the threshold amount used for the preparation of such
schedule, in each case, to the extent that such Claims and liabilities have not
been paid and satisfied as of the Effective Date, are continuing following the
Effective Date, excluding 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)                                 except with
respect to Claims related to GGO or the assets or businesses contributed
thereto, 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),


 


(vi)                              the MPC Tax
Reserve, and


 


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


 


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


 


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


 


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


 


(ee)                            “GGO Common
Share Amount” means 324,683,256 plus 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.


 


(ff)                                [Intentionally
Omitted.]


 


(gg)                          “GGO Note
Amount” means: (i) in the event there is a Net Debt Excess Amount, the
aggregate of the Net Debt Excess Amount set forth on the Conclusive Net Debt
Adjustment


 


62

















 


Statement
and the Hughes Heirs Obligations to the extent satisfied with assets (including
cash, but excluding shares of New Common Stock or Identified Assets) of the
Company (such amount so satisfied, the “Hughes Amount”); and (ii) in
the event there is a Net Debt Surplus Amount, the Hughes Amount less the Net
Debt Surplus Amount, provided, that in no event shall the GGO Note Amount be
less than zero.


 


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


 


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


 


(jj)                                  “GGO
Purchase Price” means the product of (a) the GGO Per Share Purchase Price
multiplied by (b) the sum of (i) the number of Unsubscribed Shares
and (ii) the number of shares of GGO Common Stock subscribed on or before
the Expiration Time by the applicable Purchaser pursuant to the GGO Minimum
Allocation Right.


 


(kk)                            “GGO Setup
Costs” means such liabilities, costs and expenses as may be incurred by the
Company 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.


 


(ll)                                  “GGO Shares”
means the shares of GGO Common Stock purchased by the applicable Purchaser in
or in connection with the GGO Rights Offering and the shares of GGO Common
Stock received as Backstop Consideration.


 


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


 


(nn)                          “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.


 


63

















 


(oo)                          “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.


 


(pp)                          “Hughes
Heirs Obligations” means claims or interests against the Debtors arising under
or related to the Hughes Agreement.


 


(qq)                          “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.


 


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


 


(ss)                            “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.


 


(tt)                                “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.


 


(uu)                          “Liquidity
Equity Issuances” means issuances of shares of New Common Stock in the Plan
for cash in excess of 1,104,683,256 shares of New Common Stock minus the number
of shares of New Common Stock equal to the (x) sum of the Reinstated
Amounts and the net cash proceeds to the Company from Asset Sales and the
issuance of New Debt divided by (y) the Per Share Purchase Price.


 


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(vv)                              “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.


 


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


 


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(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.


 


(xx)                              “MPC Assets”
means residential and commercial lots in the “master planned communities” owned
by the Howard Hughes Corporation or The Hughes Corporation or related to the
Emerson Master Planned Community.


 


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


 


(zz)                              “MPC Tax
Reserve” means any reserve for MPC Taxes to be established under the Plan
as determined by the Bankruptcy Court in the Confirmation Order or such other
order as may be entered by the Bankruptcy Court on or prior to the Effective
Date, less any MPC Taxes paid prior to the Effective Date.


 


(aaa)                       “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).


 


(bbb)                   “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.


 


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


 


(ddd)                   “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(ddd),
the term “control” shall mean, possession, directly or indirectly, of the power
to direct the management and policies of a Person whether through the ownership
of voting securities, contract or otherwise; provided, however,
that the rights of any Person to exercise Major Decision Rights under a Joint
Venture shall not constitute or be deemed to constitute “control” for the
purposes hereof. “Controlling” and “controlled” shall have meanings correlative
thereto. For purposes of this Section 12.1(ddd), 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.


 


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(eee)                      “Offering
Premium” means, with respect to any shares of New Common Stock issued for
cash in conjunction with issuances of New Common Stock permitted by this
Agreement (including any Liquidity Equity Issuance) prior to, or on the
Effective Date together with shares of New Common Stock issued in Liquidity
Equity Issuances completed within thirty (30) days of the Effective Date, the
product of (i) (A) the per share offering price of the shares of New
Common Stock issued (net of all underwriting and other discounts, fees or other
compensation, and related expenses) less (B) the Per Share Purchase Price
and (ii) the number of shares of New Common Stock sold pursuant thereto.


 


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


 


(ggg)                   “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 consummated (the “Confirmed
Debtors”), (d) surety bond Claims relating to the types of Claims
identified in clauses (a) through (c) of this definition, and (e) GGO
Setup Costs.


 


(hhh)                   “Permitted
Claims Amount” means, as of the Effective Date, an amount equal to the sum
of (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 established under the Plan with respect to Permitted Claims, as
determined by the Bankruptcy Court in the Confirmation Order or such other
order as may be entered by the Bankruptcy Court on or prior to the Effective
Date (the “Reserve”), to provide for distributions on account of all
other 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, plus (c) the aggregate amount
of the GGO Setup Costs as of the Effective Date; provided, however,
that there shall be no duplication with any amounts otherwise included in
Closing Date Net Debt.


 


(iii)                               “Permitted
Replacement Shares” means New Common Stock that is sold for cash proceeds
immediately payable to the Company (net of all underwriting and other discounts,
fees, and related consideration) of 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.


 


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


 


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(kkk)                      “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.


 


(lll)                               “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.


 


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


 


(nnn)                   “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.


 


(ooo)                   “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.


 


(ppp)                   “Reinstatement
Adjustment Amount” means the difference resulting from subtracting the
Reinstatement Amount from the aggregate amount of Corporate Level Debt.


 


(qqq)                   “Reinstatement
Amount” means the amount of Corporate Level Debt to the extent such
obligations will be reinstated pursuant to the Plan, including, to the extent
applicable, based on the elections of the holders of such Corporate Level Debt
prior to the election deadline established by the Bankruptcy Court.


 


68

















 


(rrr)                            “Reserve
Surplus Amount” means, as of any date of determination, the excess, if any,
of the Reserves over (x) any Permitted Claims paid prior to such date from
Reserves for such Permitted Claims, plus (y) the remaining balance of the
Reserve maintained by the Company as of such date as determined by the Company
Board.


 


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


 


(ttt)                            “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, and (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.


 


(uuu)                   “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.


 


(vvv)                   “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.


 


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


 


(xxx)                         “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.


 


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


 


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


 


69

















 


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.


 


(aaaa)                “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.


 


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


 


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


 


(dddd)            “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.


 


(eeee)                “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.


 


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


 


ARTICLE XIII


 


MISCELLANEOUS


 


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


 


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


 


Fairholme Capital Management, LLC

4400 Biscayne Boulevard, 9th Floor


Miami, Florida 33137


Attention:                 Charles M. Fernandez


Facsimile:                  (305) 358-8002


 


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


 


Sullivan & Cromwell LLP


125 Broad Street


New York, New York 10004


Attention:                 Andrew G. Dietderich, Esq.


Alan J. Sinsheimer, Esq.


Facsimile:                  (212) 558-3588


 


Greenberg Traurig, LLP


401 East Las Olas Boulevard, Suite 2000

Fort Lauderdale, Florida 33301


Attention:                 Bruce I. March, Esq.


Matthew M. Robbins, Esq.


Facsimile:                  (954) 765-1477


 


Herrick, Feinstein, LLP


2 Park Avenue


New York, NY 10016


Attention:                 Joshua J. Angel, Esq.


John Rogers, Esq.


Facsimile:                  (212) 592-1500


 


(b)                                 If to the Company, to:


 


General Growth Properties, Inc.


110 N. Wacker Drive


Chicago, Illinois 60606


Attention:                 Ronald L. Gern, Esq.


Facsimile:                  (312) 960-5485


 


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


 


Weil, Gotshal & Manges LLP


767 Fifth Avenue


New York, New York 10153


Attention:                 Marcia L. Goldstein, Esq.


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


 


71

















 


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). This Agreement (including the documents
and instruments referred to in this Agreement) is not intended to and does not
confer upon any person other than the parties hereto any rights or remedies
under this Agreement. Notwithstanding the foregoing, or any other provisions
herein to the contrary, no Purchaser may assign any of its rights, interests or
obligations under this Agreement to the extent such assignment would preclude
the applicable securities Laws exemptions from being available or such
assignment would cause a failure of the closing condition in Section 7.1(u) of
the Brookfield Agreement.


 


SECTION 13.3                    Prior
Negotiations; Entire Agreement. This Agreement (including
the exhibits hereto and the documents and instruments referred to in this
Agreement) constitutes the entire agreement of the parties and supersedes all
prior agreements, arrangements or understandings, whether written or oral,
between the parties with respect to the subject matter of this Agreement.


 


SECTION 13.4                    Governing Law;
Venue. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND VENUE IN, THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND 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.


 


72

















 


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


 


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


 


SECTION 13.9                    Construction.


 


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


 


(b)                                 Unless the context otherwise
requires, as used in this Agreement: (i) an accounting term not otherwise
defined in this Agreement has the meaning ascribed to it in accordance with
GAAP; (ii) “or” is not exclusive; (iii) “including” and its variants
mean “including, without limitation” and its variants; (iv) words defined
in the singular have the parallel meaning in the plural and vice versa; (v) references
to “written” or “in writing” include in visual electronic form; (vi) words
of one gender shall be construed to apply to each gender; (vii) the terms
“Article,” “Section,” and “Schedule” refer to the specified Article, Section,
or Schedule of or to this Agreement; and (viii) the term “beneficially
own” shall have the meaning determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof; provided, however,
that a Person will be deemed to beneficially own (and have beneficial ownership
of) all securities that such Person has the right to acquire, whether such
right is exercisable immediately or with the passage of time or the
satisfaction of conditions. The terms “beneficial ownership” and “beneficial
owner” have correlative meanings.


 


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


 


(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.


 


73

















 


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


 


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


 


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


 


74

















 


exclusive
remedy of any nature whatsoever (whether for monetary damages, specific
performance, injunctive relief, or otherwise) of such Purchaser against the
Company for any harm, damage or loss of any nature relating to or as a result
of any breach of this Agreement by the Company or the failure of the Closing to
occur for any reason; provided, that, following the entry of the
Approval Order, each Purchaser shall be entitled to specific performance of the
Company’s obligation to issue the Warrants as well as the Company’s obligations
under Section 5.1(c) hereof.


 


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


 


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


 


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


 


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


 


[Signature
Pages Follow]


 


75

















 


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


 


 


	
   

  	
  FAIRHOLME
  FUNDS, INC.,

  
	
   

  	
  on
  behalf of its series The Fairholme Fund

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce R. Berkowitz

  
	
   

  	
  Name:
  Bruce R. Berkowitz, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FAIRHOLME
  FUNDS, INC.,

  
	
   

  	
  on
  behalf of its series Fairholme Focused Income Fund

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce R. Berkowitz

  
	
   

  	
  Name:
  Bruce R. Berkowitz, President

  



 


Signature Page of
Fairholme Stock Purchase Agreement


 

















 


	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas H. Nolan Jr

  
	
   

  	
   

  	
  Name:

  	
  Thomas H. Nolan Jr

  
	
   

  	
   

  	
  Title:

  	
  President & COO

  



 


Signature Page of
Fairholme Stock Purchase Agreement


 
















Exhibit A


 


GENERAL GROWTH PROPERTIES, INC.


PLAN SUMMARY TERM SHEET(1)


 


3/31/2010


 


This
term sheet (the “Term Sheet”) describes the material terms of a proposed
chapter 11 joint plan of reorganization (the “Plan”) of the Plan Debtors
(as defined below) solely for the purposes of the Investment Agreements (as
defined below).  The transactions
contemplated by this term sheet are subject to conditions to be set forth in
definitive documents, including the Investment Agreements and to the approval
by the United States Bankruptcy Court for the Southern District of New York
(the “Bankruptcy Court”).  This
Term Sheet is not an offer or solicitation for any chapter 11 plan and is being
presented for discussion and settlement purposes only.  Acceptance of any such plan by any party
(including those named herein) will not be solicited from any person or entity
until such person or entity has received the disclosures required under or
otherwise in compliance with applicable law. 
Accordingly, this Term Sheet does not bind any creditor or other party
to vote in favor of or support any chapter 11 plan.  In the event of any inconsistency between the
terms of the Plan and this Term Sheet, or the terms of any applicable
Investment Agreement and this Term Sheet, the terms of the Plan and the
Investment Agreements, respectively, shall control for their respective
purposes.


 


I.                                         PARTIES/AGREEMENTS


 


	
  A.

  	
  GGP

  	
   

  	
  General
  Growth Properties, Inc. (“GGP”) on or before the Effective Date
  and GGP, as reorganized, from and after the Effective Date

  
	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Plan Debtors

  	
   

  	
  The
  debtors, including GGP, whose chapter 11 cases are pending in the Bankruptcy
  Court under Chapter 11 Case No. 09-11977 (ALG), whose chapter 11 cases
  have not otherwise been confirmed and whose chapter 11 cases will be treated pursuant
  to the Plan (collectively, the “Plan Debtors”)

  
	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Confirmed Debtors

  	
   

  	
  The
  subsidiary debtors other than the Plan Debtors whose chapter 11 plans have
  been confirmed as of the Effective Date (the “Confirmed Debtors”)

  
	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Debtors

  	
   

  	
  Plan
  Debtors, Confirmed Debtors and to the extent applicable, any debtor whose
  chapter 11 case is pending under Chapter 11 Case No. 09-11977 (ALG) but
  that is not a Plan Debtor or a Confirmed Debtor

  
	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
  REP

  	
   

  	
  REP
  Investments LLC (“REP”)

  
	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
  Fairholme

  	
   

  	
  Fairholme
  Capital Management, LLC, on behalf of one or more of its managed funds or
  affiliates of such managed funds (“Fairholme”)

  



 






(1)                                  Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Investment Agreement to which this Term Sheet is attached.


 

















 


	
  G.

  	
  Pershing

  	
   

  	
  Pershing
  Square Capital Management, L.P., on behalf of one or more of its managed
  funds (“Pershing” and together with REP and Fairholme, the “Purchasers”)

  
	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
  Confirmed Plans

  	
   

  	
  The
  chapter 11 plans of the Confirmed Debtors (the “Confirmed Plans”)

  
	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
  CIA

  	
   

  	
  Cornerstone
  Investment Agreement dated as of
           2010 between REP and GGP
  (the “CIA”)

  
	
   

  	
   

  	
   

  	
   

  
	
  J.

  	
  Fairholme Stock Purchase Agreement

  	
   

  	
  Stock
  Purchase Agreement dated as of       , 2010 between
  the purchasers parties thereto and GGP (the “Fairholme SPA”)

  
	
   

  	
   

  	
   

  	
   

  
	
  K.

  	
  Pershing Stock Purchase Agreement

  	
   

  	
  Stock
  Purchase Agreement dated as of
          , 2010 between the purchasers
  parties thereto and GGP (the “Pershing SPA” and together with the CIA and
  the Fairholme SPA, the “Investment Agreements”)

  



 


II.                                     TREATMENT OF CLAIMS AND INTERESTS


 


	
  A.

  	
  DIP Loan Claims

  	
   

  	
  ·

  	
  Treatment: Paid in full, in cash on the effective date (the “Effective
  Date”) of the Plan.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  ·

  	
  The
  Plan Debtors may, at their option, satisfy all or a portion of the DIP Loan
  Claims through a conversion to New Common Stock (a “DIP Conversion”),
  provided GGP engages in a “Qualified Rights Offering” in accordance with the
  terms of the order approving the DIP facility or on such other terms as the parties may agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Allowed Administrative Expense Claims

  	
   

  	
  ·

  	
  Treatment: Paid in full, in cash on the
  Effective Date or on such other terms as the parties may agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Allowed Priority Non-Tax Claims

  	
   

  	
  ·

  	
  Treatment: Paid in
  full, in cash on the Effective Date or on such other terms as the parties may
  agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Allowed Priority Tax Claims

  	
   

  	
  ·

  	
  Treatment: At the Plan
  Debtors’ election, (i) paid in full, in cash on the Effective Date,
  (ii) receive the treatment provided for in section 1129(a)(9)(c) of
  the Bankruptcy Code or (iii) receive treatment on such other terms as
  the parties may agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
  Allowed Secured Tax Claims

  	
   

  	
  ·

  	
  Treatment: At the Plan
  Debtors’ election, (i) paid in full, in cash on the Effective Date,
  (ii) receive the treatment provided for in section 1129(a)(9)(d) of
  the Bankruptcy Code or (iii) receive treatment on such other terms as
  the parties may agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
  Allowed Mechanics’ Lien Claims

  	
   

  	
  ·

  	
  Treatment: Paid in full, in cash on the
  Effective Date, as well as any amounts allowed and required to be paid
  pursuant to section 506(b) of the Bankruptcy Code, including postpetition
  interest at the Federal Judgment Rate (as defined in the Confirmed Plans)
  unless there is an applicable contractual rate or rate of interest under
  state law, in which case interest shall be paid at such

  



 


2

















 


	
   

  	
   

  	
   

  	
   

  	
  rate of interest, provided the claimant satisfies
  certain notice requirements consistent with those terms contained in the
  Confirmed Plans. The mechanics’ liens securing the Mechanics’ Lien Claims
  shall be deemed released and shall require no further action on the part of
  the holders of the Mechanics’ Lien Claims.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
  Allowed Other Secured Claims

  	
   

  	
  ·

  	
  Treatment: At the Plan
  Debtors’ option, on the Effective Date, holders of allowed Other Secured
  Claims shall either (a) be reinstated and rendered unimpaired,
  (b) receive cash in an amount equal to such allowed Other Secured Claim
  plus any interest allowed and required to be paid under section
  506(b) of the Bankruptcy Code, (c) receive the collateral securing
  its allowed Other Secured Claim or (d) such other treatment as the
  holder of the Other Secured Claim and the Plan Debtors may agree.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
  Rouse 8.00% Note Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed Rouse 8.00% Note Claims shall be satisfied in
  full, in cash or shall receive such other treatment as is permissible
  pursuant to section 1129 of the Bankruptcy Code. In addition, the Plan
  Debtors shall pay in cash any outstanding reasonable agent or trustee fees
  and expenses provided for under the applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
  Rouse 3.625% Note Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed Rouse 3.625% Note Claims shall be satisfied in
  full, in cash or shall receive such other treatment as is permissible
  pursuant to section 1129 of the Bankruptcy Code. In addition, the Plan
  Debtors shall pay in cash any outstanding reasonable agent or trustee fees
  and expenses provided for under the applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  J.

  	
  Rouse 5.375% Note Claims

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, the Allowed
  Rouse 5.375% Note Claims (i) shall be cured and reinstated in accordance
  with section 1124 of the Bankruptcy Code or at the option of such holders,
  shall be satisfied in cash at par plus accrued interest at the stated
  non-default contract rate and shall be deemed to have waived any other
  claims, or (ii) shall receive such other treatment as is permissible
  under section 1129 of the Bankruptcy Code.  In addition, the Plan
  Debtors shall pay in cash any outstanding reasonable agent or trustee fees
  and expenses provided for under the applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  K.

  	
  Rouse 63⁄4% Note Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed Rouse 63⁄4  % Note Claims (i) shall be
  cured and reinstated in accordance with section 1124 of the Bankruptcy Code
  or at the option of such holders, shall be satisfied in cash at par plus
  accrued interest at the stated non-default contract rate and shall be deemed
  to have waived any other claims, or (ii) shall receive such other 

  



 


3

















 


	
   

  	
   

  	
   

  	
   

  	
  treatment as is permissible under section 1129 of
  the Bankruptcy Code. In addition, the Plan Debtors shall pay in cash any
  outstanding reasonable agent or trustee fees and expenses provided for under
  the applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  L.

  	
  Rouse 7.20% Note Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed Rouse 7.20%  Note
  Claims (i) shall be cured and reinstated in accordance with section 1124
  of the Bankruptcy Code or at the option of such holders, shall be satisfied
  in cash at par plus accrued interest at the stated non-default contract rate
  and shall be deemed to have waived any other claims, or (ii) shall
  receive such other treatment as is permissible under section 1129 of the
  Bankruptcy Code. In addition, the Plan Debtors shall pay in cash any outstanding
  reasonable agent or trustee fees and expenses provided for under the
  applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  M.

  	
  2006 Bank Loan Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed 2006 Bank Loan Claims shall be satisfied in full,
  in cash. In addition, the Plan Debtors shall pay in cash any outstanding
  reasonable agent fees and expenses provided for under the applicable loan
  agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N.

  	
  144A Exchangeable Notes Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed 144A Exchangeable Note Claims (i) shall be
  cured and reinstated in accordance with section 1124 of the Bankruptcy Code
  or at the option of such holders, shall be satisfied in cash at par plus
  accrued interest at the stated non-default contract rate and shall be deemed
  to have waived any other claims, or (ii) shall receive such other
  treatment as is permissible under section 1129 of the Bankruptcy Code. In
  addition, the Plan Debtors shall pay in cash any outstanding reasonable agent
  or trustee fees and expenses provided for under the applicable indenture.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  O.

  	
  2006 Trust Preferred Shared and Junior Subordinated Notes
  (the “TRUPs Claims”)

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the Allowed TRUPs Claims shall be cured and reinstated in
  accordance with section 1124 of the Bankruptcy Code or shall receive such
  other treatment permissible under section 1129 of the Bankruptcy Code. In
  addition, the Plan Debtors shall pay in cash any outstanding reasonable
  trustee fees and expenses provided for under the applicable trust agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P.

  	
  Allowed General Unsecured Claims(2)

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, holders of
  Allowed General Unsecured Claims shall (i) receive payment in

  



 






(2) General Unsecured Claims include
Existing Credit Enhancement Claims (as such term is defined in the Confirmed
Plans) with respect to the Special Consideration Properties (as such term is
defined in the Confirmed Plans).


 


4

















 


	
   

  	
   

  	
   

  	
   

  	
  full, in cash with postpetition interest at the
  Federal Judgment Rate, unless there is an applicable contractual rate or rate
  of interest under state law, in which case interest shall be paid at such
  rate of interest, provided the claimant satisfies certain notice requirements
  consistent with those terms contained in the Confirmed Plans or (ii) shall
  receive such other treatment permissible under section 1129 of the Bankruptcy
  Code.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Q.

  	
  Partner Note GGP/Homart II, L.L.C. Claims

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, at the
  election of the Plan Debtors, the Allowed Partner Note GGP/Homart II L.L.C.
  Claims (i) shall be cured and reinstated in accordance with section 1124
  of the Bankruptcy Code, (ii) shall be satisfied in full, in cash or
  (iii) shall receive such other treatment permissible under section 1129
  of the Bankruptcy Code.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  R.

  	
  Partner Note GGP Ivanhoe, Inc. Claims

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, at the
  election of the Plan Debtors, the Allowed Partner Note GGP Ivanhoe, Inc.
  Claims (i) shall be cured and reinstated in accordance with section 1124
  of the Bankruptcy Code, (ii) shall be satisfied in full, in cash or
  (iii) shall receive such other treatment permissible under section 1129
  of the Bankruptcy Code. In the event the holders of Allowed Partner Note GGP
  Ivanhoe, Inc. Claims are reinstated, the guaranty currently securing the
  obligations under the GGP Ivanhoe, Inc. Partner Note shall be affirmed
  and shall continue post emergence.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S.

  	
  GGP TRS Retained Debt Claims

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, the joint
  venture agreement between GGP LP and TRS JV Holdco, LLC shall be assumed, and
  the Plan Debtors shall make any cure payments required thereunder.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  T.

  	
  Allowed Project Level Debt Guaranty Claims

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, at the election of the Plan Debtors, the holders of allowed
  Project Level Debt Guaranty Claims shall receive a replacement guaranty or
  such other treatment under the Plan as contemplated by the Confirmed Plans.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  U.

  	
  Allowed Hughes Heirs Obligations

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the holders of allowed Hughes Heirs Obligations shall receive
  property of a value (a) as agreed to by the Debtors and such holders or
  (b) ordered by the Bankruptcy Court, in satisfaction of the allowed
  amount of their claims or interests; provided
  that, to the extent permissible, the Hughes Heirs Obligations may
  be satisfied, in whole or in part, through the issuance of GGO Stock.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
  Intercompany Obligations

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, Intercompany Obligations shall be reinstated and treated in
  the ordinary course of business or eliminated in the ordinary course of
  business, including the elimination of any Intercompany Obligations owed to
  or from any

  



 


5

















 


	
   

  	
   

  	
   

  	
   

  	
  entities to be transferred to GGO.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  W.

  	
  GGPLP LLC Preferred Equity Interests

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, the holder of GGPLP LLC preferred equity interests (“GGPLP
  LLC Preferred Equity Interests”) will receive (a) a distribution of
  Cash based on its share of dividends accrued and unpaid prior to the
  Effective Date and (b) reinstatement of its preferred units in
  Reorganized GGPLP LLC, which shall be in the same number of preferred units
  in Reorganized GGPLP LLC as it held as of the Record Date in GGPLP LLC,
  provided, however, that any prepetition redemption or conversion rights held
  by such holder (subject to any rights of GGP) shall be deemed to have been
  revised to subsequently be redeemable or convertible into New Common Stock on
  conversion or redemption terms consistent with its prepetition agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
  GGPLP Preferred Equity Interests

  	
   

  	
  ·

  	
  Treatment: On the
  Effective Date, holders of GGPLP Preferred Equity Interests will receive
  (a) a distribution of Cash based on their pro rata share of dividends
  accrued and unpaid prior to the Effective Date and (b) may elect between
  (i) reinstatement of their preferred units in Reorganized GGPLP, which
  shall be in the same number of preferred units in Reorganized GGPLP as they
  held as of the Record Date in GGPLP, provided, however, that any prepetition
  indirect redemption or conversion rights to receive GGP Common Stock held by
  such holders (subject to any rights of GGP) shall be deemed to have been
  revised to subsequently be redeemable or convertible into New Common Stock on
  conversion or redemption terms consistent with their prepetition agreements,
  or (ii) being deemed to have converted their GGPLP Preferred Equity
  Interests to GGPLP common units and then to have put such GGPLP common units to
  GGPLP, effective the day prior to the Record Date, and GGP will assume
  GGPLP’s obligation under such put and satisfy this obligation with New Common
  Stock and GGO Stock as if such holders had exercised their rights on the day
  immediately preceding the Record Date.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Y.

  	
  GGPLP Common UPREIT Units

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, GGPLP Common
  UPREIT Units will receive (a) the same number of common units in
  Reorganized GGPLP as they held as of the Record Date, provided, however, that
  any prepetition redemption or conversion rights held by such GGPLP Common
  UPREIT Unit holders (subject to any rights of GGP) shall be deemed to have
  been revised to subsequently be convertible into New Common Stock on
  conversion or redemption terms consistent with their prepetition agreement,
  plus (b) GGO Common Stock calculated as if their GGPLP

  



 


6

















 


	
   

  	
   

  	
   

  	
   

  	
  Common UPREIT Units were converted to GGP Common
  Stock on the day before the Record Date.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Z.

  	
  GGP Common Stock

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, each holder of
  GGP Common Stock shall receive its proportionate share of (i) the New
  Common Stock and (ii) the GGO Share Distribution.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AA.

  	
  Outstanding Warrants

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, each holder of
  an outstanding Warrant (as such term is defined in the CIA and/or the Stock
  Purchase Agreement), shall receive the treatment provided for such Warrant in
  the CIA or the Stock Purchase Agreement, as applicable.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BB.

  	
  Outstanding Options

  	
   

  	
  ·

  	
  Treatment: On the Effective Date, each holder of
  an outstanding option to purchase GGP Common Stock shall receive on account
  of such option, an option to purchase New Common Stock and an option to
  purchase GGO Common Stock.

  



 


III.                                 CLOSING DATE DEBT AND GGO PROMISSORY NOTE


 


	
  A.

  	
  Closing Date Net Debt and GGO Promissory Note

  	
   

  	
  ·

  	
  The Closing Date Net Debt shall be determined in
  accordance with the CIA and the Plan and the GGO Promissory Note, if any,
  shall be issued on the Effective Date.

  



 


IV.                                OTHER PLAN TERMS


 


	
  A.

  	
  Executory
  Contracts and Unexpired Leases

  	
   

  	
  ·

  	
  All executory contracts
  (including employee benefit plans, insurance, supply contracts, etc.) and
  unexpired leases will be assumed unless expressly rejected under the Plan or
  through a separate motion. 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Provisions
  Concerning Resolution of Disputed, Contingent, and Unliquidated Claims and
  Claims Payable by Third Parties

  	
   

  	
  ·

  	
  The Plan will contain
  usual and customary provisions for resolving disputed, contingent and
  unliquidated claims and claims payable by third parties, including (to the
  extent appropriate) provisions consistent with the terms contained in the
  Confirmed Plans.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Employee/
  Officer/ Director  Indemnification
  Obligations

  	
   

  	
  ·

  	
  The Plan Debtors’
  indemnification obligations for employees, officers, directors, trustees or
  managers shall be deemed assumed, in accordance with the provisions in the
  Confirmed Plans, unless otherwise expressly rejected by separate motion or
  under the Plan.  

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Provisions Concerning Plan
  Implementation

  	
   

  	
  ·

  	
  The Plan shall provide for usual and customary means
  of implementation, including (to the extent appropriate) implementation
  provisions consistent with the terms contained in the Confirmed Plans. 

  



 


7

















 


	
  E.

  	
  Insurance Policies, Benefit Plans,
  Surety Bonds

  	
   

  	
  ·

  	
  The Plan Debtors’ insurance policies, benefit plans,
  workers’ compensation claims, and surety bonds shall be treated in a manner
  consistent with that provided in the Confirmed Plans.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
  Retention
  of Causes of Action

  	
   

  	
  ·

  	
  All causes of action shall
  vest with GGP or GGO, as applicable

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
  Conditions
  for Consummation and Confirmation 

  	
   

  	
  ·

  	
  Usual and customary for
  transactions of this type

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  H.

  	
  Discharge,
  Releases and Exculpation

  	
   

  	
  ·

  	
  The Plan will contain
  discharge, release and exculpation provisions in a manner consistent with
  those provided in the Confirmed Plans. 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
  Governing
  Law

  	
   

  	
  ·

  	
  To the extent the
  Bankruptcy Code or other federal law does not apply, New York law shall
  govern. 

  



 


8
















EXHIBIT E


 


GGO ASSETS


 


Pursuant to Section 2.1(a),
and subject to the conditions, exceptions and qualifications set forth therein,
the Company will contribute to GGO (directly or indirectly) the assets (and/or
equity interests related thereto) listed below:


 


·                  Master
Planned Communities


 


·                  Bridgeland


 


·                  Columbia
– subject to Section 2.1(e) of the Agreement.  For the avoidance of doubt, The Mall in
Columbia and Gateway Overlook (including related development rights) shall not to be
transferred to GGO.


 


·                  Emerson


 


·                  Fairwoods


 


·                  Summerlin


 


·                  Woodlands
– joint venture interest


 


·                  110 N.
Wacker (leasehold interest) – joint venture interest


 


·                  Ala
Moana Tower – air rights over existing parking deck


 


·                  Alameda
Plaza, Idaho


 


·                  Allen
Towne Plaza, Texas


 


·                  Arizona
2 Office – capital lease revenue only; no transfer to GGO of underlying
properties


 


·                  Bridges
at Mint Hill, North Carolina


 


·                  Century
Plaza, Alabama


 


·                  Circle
T Ranch & Power Centre, Texas – joint venture interest


 


·                  Condos
Nouvelle at Natick – rights to income from assets sold and for which a closing
has occurred prior to Closing remain with GGP


 


·                  Cottonwood
Mall and Cottonwood Square


 


·                  Elk
Grove Promenade


 


·                  Fashion
Show – springing right to acquire Fashion Show air rights upon full
satisfaction of existing loans and guaranties at Fashion Show and Palazzo.


 


·                  Golf
course interests - TPC Summerlin & TPC Canyons


 


·                  Kendall
Towne Center, Miami – land


 


·                  Landmark
Mall


 

















 


·                  Maui
Ranch property


 


·                  Park
West Mall


 


·                  Princeton,
New Jersey – land


 


·                  Rio
West, New Mexico


 


·                  Riverwalk
Market Place


 


·                  South
Street Seaport


 


·                  Summerlin
Centre


 


·                  Summerlin
Hospital – joint venture interest


 


·                  Victoria
Ward


 


·                  Village
of Redlands, California (Redlands Mall and Redlands Promenade)


 


·                  Volo,
Illinois – land


 


2
















Exhibit F


 


UNITED
STATES BANKRUPTCY COURT


SOUTHERN
DISTRICT OF NEW YORK


 


	
   

  	
  x

  	
   

  
	
   

  	
  :

  	
   

  
	
  In re

  	
  :

  	
  Chapter
  11 Case No.

  
	
   

  	
  :

  	
   

  
	
  GENERAL GROWTH

  	
  :

  	
  09-11977
  (ALG)

  
	
  PROPERTIES, INC., et  al.,

  	
  :

  	
   

  
	
   

  	
  :

  	
  (Jointly
  Administered)

  
	
  Debtors.

  	
  :

  	
   

  
	
   

  	
  x

  	
   

  



 


ORDER PURSUANT TO
SECTIONS 105(a) AND 363 OF THE BANKRUPTCY


CODE (A) APPROVING BIDDING PROCEDURES, (B) AUTHORIZING THE


DEBTORS
TO ENTER INTO CERTAIN AGREEMENTS, (C) APPROVING


THE ISSUANCE OF WARRANTS,
AND (D) GRANTING RELATED RELIEF


 


Upon the motion,
dated March 31, 2010 (the “Motion”)(1) of
South Street Seaport Limited Partnership, its ultimate parent, General Growth
Properties, Inc. (“GGP”), and
their debtor affiliates, as debtors and debtors in possession (collectively, “General Growth”), pursuant to
sections 105(a) and 363 of title 11 of the United States Code (the “Bankruptcy
Code”),
seeking entry of an order (A) approving bidding procedures (the “Bidding Procedures”) substantially
in the form attached hereto as Exhibit 1, (B) authorizing
General Growth to enter into certain investment agreements (each an “Investment Agreement” and
collectively, the “Investment Agreements”)
with REP Investments LLC (“REP”), an
affiliate of Brookfield Asset Management Inc. (“Brookfield”),
Fairholme Capital Management, LLC (“Fairholme”),
and Pershing Square Capital Management, L.P. (“Pershing”
and together with REP and Fairholme, the “Commitment Parties”),
(C) approving the issuance of the Warrants, and (D) granting related
relief, all as more fully set forth in the Motion; and the Court having reviewed the Motion;  and General Growth having provided notice of the Motion and
Hearing (as 


 






(1)                                  Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to them in the
Motion.


 

















 


defined
below) to (i) the Office of the United States Trustee for the Southern
District of New York (the “U.S. Trustee”),
(ii) counsel to the official committee of unsecured creditors (the “Committee”), (iii) counsel
to the committee of
equity holders (the “Equity Committee”), (iv) counsel to Brookfield, (v) counsel
to Fairholme, (vi) counsel to Pershing, and (vii) parties
entitled to receive notice in these chapter 11 cases pursuant to Rule 2002
of the Federal Rules of
Bankruptcy Procedure (the “Bankruptcy Rules”);
and the Court having held a hearing to consider the requested relief (the “Hearing”); and the legal
and factual bases set forth in the Motion establishing just cause for the
relief granted herein;
and upon the record of the Hearing, and all of the proceedings before the
Court, the Court finds and determines that the requested relief is in the best
interests of General Growth, their estates, creditors, and all parties in
interest; and after due deliberation and sufficient cause appearing therefor,
the Court hereby


 


FINDS, DETERMINES AND CONCLUDES THAT:


 


A.                                   The Court has jurisdiction over the
Motion pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing Order M-61
Referring to Bankruptcy Judges for the Southern District of New York Any and
All Proceedings Under Title 11, dated July 10, 1984 (Ward, Acting C.J.).
This matter is a core proceeding pursuant to 28 U.S.C. § 157(b).  Venue of these cases and the Motion in this
district is proper under 28 U.S.C. §§ 1408 and 1409.


 


B.                                     Good and sufficient notice of the relief
sought in the Motion has been given, and no other or further notice is
required.  A reasonable opportunity to
object or be heard regarding the relief requested in the Motion has been
afforded to all interested persons.


 


C.                                     The statutory predicates for the relief
granted herein are sections 105(a) and 363(b) of the Bankruptcy Code.
In addition the relief granted herein is in accordance with Bankruptcy Rules 2002
and 6004 and rules 2002-1 and 6004-1 of the Local Rules of Bankruptcy



 


2

















 


Practice and Procedure of the United States Bankruptcy
Court for the Southern District of New York.


 


D.                                    The Bidding
Procedures substantially in the form attached hereto as Exhibit 1,
including reimbursement of expenses incurred by a bidder in accordance with the Bidding
Procedures, are fair, reasonable, and appropriate and are designed to maximize
the value General Growth may realize through a competitive process for the
benefit of all stakeholders.


 


E.                                      General Growth has demonstrated sound
business justifications for authorization to enter into the Investment
Agreements, to the extent provided in this Order,  with REP, Fairholme, and
Pershing, and for
approval to execute, deliver and perform the Warrant Agreements and the
Warrants (together, with the Investment Agreements the “Reorganization
Documents”).  These
business justifications include without limitation:


 


i.                  the establishment of a ‘floor’ price for
the value of the equity of General Growth for the benefit of all stakeholders
while preserving the ability to capture the benefit of increasing equity value
in the future,


 


ii.               long-term commitments of capital
providing liquidity necessary to emerge from Chapter 11 in a manner intended to
permit satisfaction of all unsecured creditors in full and provide a substantial
recovery for shareholders,


 


iii.            the preservation of flexibility to cancel
some or all of the commitments under the Investment Agreements and to maximize
equity value by replacing part of the committed capital with financing from
more favorable sources, and


 


3

















 


iv.           the lengthy nature of the commitments to
purchase $6.55 billion of publicly-listed stock at a fixed price.


 


F.                                      General Growth, assisted by qualified
professional advisors, has conducted a competitive process to identify
alternative sources of equity capital commitments for a plan of reorganization,
as well as explored strategic opportunities, which process will continue as
described in the Bidding Procedures. 
General Growth has made a reasonable determination that it is in the
best interests of General Growth to enter into the Warrant Agreements with the
Commitment Parties and grant indemnity as provided in Article IX of the
REP Investment Agreement at this time.


 


G.                                     The Warrants and the Warrant Agreement
relating to each Commitment Party were proposed and negotiated in good faith
and at arm’s length.


 


H.                                    The execution, delivery and performance
of the Warrant Agreements and the issuance of the Warrants relating to each
Commitment Party are fair and reasonable and in the best interests of General
Growth, and do not conflict with any federal or state law.


 


I.                                         The Warrant Agreement and the Warrants
issued to each Commitment Party are bargained-for and integral parts of the
agreement between General Growth and such Commitment Party reflected in the
Reorganization Documents.  If the
Warrants are not approved by the Court and issued as provided in the Warrant
Agreements, each Commitment Party will have the right to terminate its
obligations under the applicable Investment Agreement.


 


J.                                        The Warrant Agreement and the Warrants
issued to each Commitment Party are supported by at least reasonably equivalent
value and fair consideration given by the execution and delivery of the
applicable Investment Agreement and the commitments provided thereunder.  The Warrants, once issued, will be deemed
issued and sold for value fully paid on 


 


4

















 


the date of issuance and will constitute legal, valid,
binding and authorized obligations of General Growth enforceable in accordance
with their terms.


 


K.                                    Entry of this Order is in the best
interests of General Growth and its estates, creditors, and interest holders
and all other parties in interest herein.


 


L.                                      The findings and conclusions set forth
herein constitute the Court’s findings of fact and conclusions of law pursuant
to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to
Bankruptcy Rule 9014.  To the extent
that any finding of fact shall later be determined to be a conclusion of law,
it shall be so deemed and vice versa.


 


ACCORDINGLY,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:


 


1.                                       The Bidding Procedures attached hereto as
Exhibit 1 are APPROVED as if fully incorporated into this Order and
General Growth is authorized to act in accordance therewith; provided, however, that
the Bidding Procedures shall be without prejudice to the rights of the
Commitment Parties under the Reorganization Documents.  The failure to specifically include a
reference to any particular provision of the Bidding Procedures in this Order
shall not diminish or impair the effectiveness of such provision.


 


2.                                       Notwithstanding any confidentiality
agreement that may be contained in any agreement, contract, or other document
to which General Growth is a party, General Growth is authorized to disclose
the contents of such agreement, contract, or document to prospective bidders to
the extent required by the Bidding Procedures and such disclosure shall not be
a breach of any such contract, agreement or document.


 


3.                                       General Growth is authorized, in its sole
discretion and subject to the exercise of its business judgment, to reimburse
expenses incurred by any bidder in accordance 


 


5

















 


with the Bidding Procedures up to $1 million per
bidder; provided, however,
that in no event shall General Growth reimburse more than an aggregate of $10
million for such expenses.


 


4.                                       General Growth is authorized to enter
into the Reorganization Documents and to issue and sell the Warrants to each
Commitment Party in accordance with the terms of the Investment Agreements and
Warrant Agreements.  General Growth is
authorized to perform its obligations under the Warrant Agreements and the
Warrants.


 


5.                                       The Warrant Agent is authorized to
perform its obligations under the Warrant Agreement in accordance with the
terms and conditions thereof.


 


6.                                       Upon issuance of the Warrants to any
Commitment Party, such Commitment Party shall be fully and irrevocably vested
with all right, title and interest in the Warrants free and clear of any
adverse claim or interest.  The Warrant
Agreements and the Warrants shall not be recharacterized for any purpose or
avoided for any reason whatsoever and shall not constitute fraudulent conveyances
under the Bankruptcy Code or other applicable nonbankruptcy law.


 


7.                                       The Warrant Agreement and Warrants
issuable to each Commitment Party are authorized as a sale of property under
section 363(b) of the Bankruptcy Code. 
Each Commitment Party is purchasing the Warrants in good faith for
purposes of section 363(m) of the Bankruptcy Code and, accordingly, the
reversal or modification on appeal of the authorization provided herein to
issue the Warrants pursuant to the Warrant Agreement shall not affect the
validity of the issuance and sale of the Warrants to such Commitment Party or
the right, title and interest of such Commitment Party and its successors and
permitted assigns in the Warrants or any securities issued upon exercise of the
Warrants.


 


6

















 


8.                                       The provisions
of Sections 5.1(c), 5.7, 11.1, 13.11(c), 13.12, and Article IX of the REP
Investment Agreement and Sections 5.1(c), 5.7, 11.1, 13.11(c), and 13.12 of the
Pershing Investment Agreement and the Fairholme Investment Agreement are
approved and shall be binding upon General Growth.  Each of the Warrants and the Warrant
Agreements are approved.  No relief from
the automatic stay or the provisions of section 362 of the Bankruptcy Code
shall be required for REP, Fairholme, and/or Pershing to take any action, or
send any notice, with respect to the exercise of a termination right under the
terms of the Investment Agreements and/or the Warrant Agreements.


 


9.                                       All amounts payable by General Growth
under Article IX of the REP Investment Agreement shall constitute allowed
administrative expenses of General Growth under section 503(b) and section
507(a)(2) of the Bankruptcy Code.


 


10.                                 The failure specifically to include any
particular provision of the Warrant Agreements in this Order shall not diminish
or impair the effectiveness of such provision, it being the intent of the Court
that the Warrants or the Warrant Agreements and their exhibits, schedules,
appendices and ancillary documents be authorized and approved in their
entirety.


 


11.                                 General Growth is authorized to execute
and deliver all instruments and documents and take any other actions as may be
necessary or appropriate to implement and effectuate the transactions
contemplated by this Order.


 


12.                                 All objections to the Motion or the
relief requested therein that have not been withdrawn, waived, settled, or
specifically addressed in this Order, and all reservations of rights included
in such objections, are overruled in all respects on the merits.


 


7

















 


13.                                 Notwithstanding Bankruptcy Rules 6004,
6006 or otherwise, this Order shall be effective and enforceable immediately
upon entry and its provisions shall be self-executing.


 


14.                                 All time periods set forth in this Order
shall be calculated in accordance with Bankruptcy Rule 9006.


 


15.                                 This Court shall retain jurisdiction over
any matters related to or arising from the implementation or interpretation of
this Order.  To the extent any provisions
of this Order shall be inconsistent with the Motion or any prior order or
pleading in these cases with respect to the Motion, the terms of this Order
shall control.


 


16.                                 The provisions of this Order are
non-severable and mutually dependant.


 


 


	
  Dated:

  	
                                ,
  2010

  	
   

  
	
   

  	
  New York, New
  York

  	
   

  
	
   

  	
   

  
	
   

  	
  THE HONORABLE
  ALLAN L. GROPPER

  
	
   

  	
  UNITED STATES
  BANKRUPTCY JUDGE

  



 


8
















 


Exhibit 1


 


Bidding Procedures


 

















 


BIDDING PROCEDURES


 


The following procedures (the “Bidding Procedures”)
will govern the competitive process run by General Growth Properties, Inc.
(“GGP”), and its debtor and
non-debtor affiliates (collectively, “General Growth”
or the “Company”) to maximize the
value of its estates by soliciting proposals for:


 


(i)                                   a purchase of
all or substantially all of the Company (an “M&A
Transaction”);


 


(ii)                                a purchase of a
significant portion of the Company’s assets (an “Asset
Purchase”); or


 


(iii)                             an investment
of all or a portion of at least $1.5 billion of equity capital (a “Plan Sponsor Investment”); provided, however, that
such bids are subject to a minimum investment of $100 million.


 


Following
completion of the competitive processes, the Company will seek approval of its
restructuring pursuant to a plan of reorganization (a “Plan”).


 


Preliminary Diligence


 


The Company may afford any prospective acquirers and/or investors the
opportunity to conduct a reasonable due diligence review in the manner
determined by General Growth, in its sole discretion.


 


General Growth has
begun to provide certain parties who have either expressed an interest in
making a proposal or who General Growth believes may have an interest in making
a proposal (collectively, the “Interested Parties”)
with requests for such proposals (“RFPs”) and
confidential information memoranda (“CIMs”).  In addition, General Growth has provided
Interested Parties with access to certain information,(2) including these Bidding Procedures,
through a virtual data room (the “Data Room”)
or otherwise.  The Data Room has
been operational as of March 3, 2010.


 


Parties submitting
proposals may seek reimbursement of expenses incurred in connection with these
Bidding Procedures up to $1 million per bidder by providing a written request
for reimbursement with a summary and detailed backup for the expenses
incurred.  The Company will consider any
such request and, in its sole discretion and subject to the exercise of its
business judgment, determine whether to provide reimbursement; provided, however, that
in no event will General Growth reimburse more than $10 million in the
aggregate.


 


Each party
submitting a Term Sheet (as defined below) shall be deemed to acknowledge and
represent that it has had an opportunity to conduct due diligence on General
Growth in connection with the first
round prior to submitting its Term Sheet; and that it solely relied upon
its own independent review, investigation and/or inspection of any documents
and/or


 






(2)           Certain
information may be restricted due to anti-trust or other concerns.


 


2

















 


the
assets in making its proposal; and that it did not rely upon any written or
oral statements, representations, promises, warranties or guaranties
whatsoever, whether express, implied, by operation of law or otherwise,
regarding General Growth, or the completeness of any information provided in
connection therewith; provided, that
the foregoing shall not apply to REP, Fairholme, and/or Pershing, who have
executed Investment Agreements (respectively, the “REP
Agreement,” the “Fairholme Agreement,”
and the “Pershing Agreement”) and
Warrant Agreements with General Growth, and the representations, warranties,
and covenants set forth in such agreements.


 


First Round Bidding
Process


 


The Company will provide reasonable assistance to
prospective acquirers and/or investors in conducting their due diligence.  Prospective acquirers and investors will be expected
to submit a non-binding, detailed term sheet for a transaction (“Term Sheets”) in writing on or before April 19, 2010 at 3:00 p.m. (Eastern Time) to the following “Bid Notification Parties”:


 


	
   

  	
  Ronen
  Bojmel

  	
  Jackson
  Hsieh

  
	
   

  	
  Managing
  Director

  	
  Vice
  Chairman

  
	
   

  	
  Miller
  Buckfire & Co., LLC

  	
  Global
  Head of Real Estate, Lodging and Leisure

  
	
   

  	
  153
  E. 53rd Street, 22nd Floor

  	
  UBS
  Securities, LLC

  
	
   

  	
  New
  York, New York 10022

  	
  299
  Park Avenue

  
	
   

  	
  Tel:   (212)
  895-1807

  	
  New
  York, NY 10171

  
	
   

  	
  Fax:  (212)
  895-1850

  	
  Tel:   (212)
  821-4545

  
	
   

  	
  ronen.bojmel@millerbuckfire.com

  	
  Fax:  (212)
  821-2545

  
	
   

  	
   

  	
  jackson.hsieh@ubs.com.

  



 


Each Term Sheet must contain detailed
descriptions of the M&A Transaction, Asset Purchase, Plan Sponsor
Investment and Plan (collectively, as applicable, the “Transaction”)
that are the subject of such Term Sheet. 
Subject to the applicable confidentiality agreements or provisions, the
Company and its professionals will share the Term Sheets received during the
first round with the advisors to the official committee of equity security
holders and the official committee of unsecured creditors (collectively, the “Committees”).


 


The Company will review those Term Sheets timely submitted and engage
in negotiations with those prospective acquirer and/or investors that submitted
Term Sheets complying with the preceding paragraph and as it deems appropriate
in the exercise of its business judgment, subject to consultation with the
Committees.  The Company will select, in
its business judgment and after consultation with the Committees, those
proposals qualifying for the second round on or before April 28,
2010.


 


3

















 


a.                                     Proposal Assumptions


 


Any proposal should make the following assumptions:


 


(i)                                   All unsecured debt is provided
consideration in the form of cash, equity and/or debt (which may include
reinstatement to the extent applicable) in an amount to satisfy their claims of
principal and accrued interest (to the extent allowed by the Bankruptcy Court)
in full;


 


(ii)                                Pro forma for Plan distributions, the Company
retains enough cash at emergence to ensure that it has a minimum of
approximately $500 million in unrestricted and available liquidity;


 


(iii)                             The Company’s restructured property-level
debt remains in place based on the restructured terms and maturities
contemplated by the consummated plans of reorganization.  Any property-level debtors that are pending
restructuring are resolved based on terms that are substantially similar in all
material respects to the treatment provided in the confirmed plans.  All non-debtor property-level debt remains in
place on its current terms; and


 


(iv)                            Unless otherwise specified in your
proposal, Plan Sponsor Investments that are less than $1.5 billion may be
directed by the Company into consortia with other bidders, at the Company’s
option.


 


4

















 


b.             Proposal
Requirements


 


Based on the form
of transaction proposed, a Term Sheet should include the following:


 


	
  M&A TRANSACTION

  
	
   

  
	
  (i)

  	
  Total
  enterprise value (“TEV”) and
  available equity value (“EV”) for
  GGP and combined company implied by proposal and any assumptions or
  methodologies used in analyzing TEV and EV (including any adjustments or
  potential decreases in net proceeds to be received by shareholders);

  
	
  (ii)

  	
  Proposed
  treatment for each class of unsecured indebtedness outstanding;

  
	
  (iii)

  	
  Proposed
  purchase price per share of existing common stock;

  
	
  (iv)

  	
  Transaction
  structure (stock deal, asset purchase, etc.);

  
	
  (v)

  	
  Form of
  consideration (cash, stock, etc.), and methodology for determining any
  non-cash consideration;

  
	
  (vi)

  	
  If
  providing stock consideration, indicate the following:

  
	
   

  	
  ·

  	
  Value
  ascribed to synergies and related methodology, if applicable;

  
	
   

  	
  ·

  	
  Pro
  forma financials for combined company;

  
	
   

  	
  ·

  	
  Pro
  forma capital structure implied by proposal;

  
	
  (vii)

  	
  Sources
  and certainty of capital, including equity or debt commitment letters;

  
	
  (viii)

  	
  Approvals
  required or anticipated, including regulatory approval(s);

  
	
  (ix)

  	
  A
  listing of all regulatory authorities with whom contact has been made, and a
  summary of any approvals or objections obtained or raised;

  
	
  (x)

  	
  Shareholder
  or other required approvals;

  
	
  (xi)

  	
  Transaction
  timing/process;

  
	
  (xii)

  	
  Key
  contingencies and conditions precedent; and

  
	
  (xiii)

  	
  Detailed
  list of remaining due diligence requirements.

  
	
   

  	
   

  
	
  PLAN SPONSOR INVESTMENT

  
	
   

  	
   

  
	
  (i)

  	
  TEV
  and EV implied by the proposal and any assumptions or methodologies used in
  analyzing TEV and EV (including any adjustments or potential decreases in net
  proceeds to be received by shareholders);

  
	
  (ii)

  	
  Proposed
  treatment for each class of unsecured indebtedness outstanding;

  
	
  (iii)

  	
  Valuation
  per share of common stock implied by the proposal;

  
	
  (iv)

  	
  Investment
  structure (e.g., PIPE, rights offering, other);

  
	
  (v)

  	
  Whether
  the investment is contemplated to complement the REP Agreement, the Fairholme
  Agreement, and/or the Pershing Agreement or replace the REP Agreement and/or
  the Fairholme/Pershing Agreements;

  
	
  (vi)

  	
  Key
  terms of newly issued securities, including but not limited to:

  
	
   

  	
  ·

  	
  Economic
  terms (ownership implied by investment; discount/fees related to investment);

  
	
   

  	
  ·

  	
  Governance;

  
	
   

  	
  ·

  	
  Registration
  rights;

  
	
  (vii)

  	
  Use
  of funds and pro forma capital structure (to the extent the proposal
  contemplates providing capital above the minimum amount requested);

  
	
  (viii)

  	
  Assumption
  regarding maximum debt capacity at the corporate level;

  
	
  (ix)

  	
  Sources
  and certainty of capital, including equity or debt commitment letters;

  
	
  (x)

  	
  Approvals
  required or anticipated, including regulatory approval(s);

  
	
  (xi)

  	
  A
  listing of all regulatory authorities with whom contact has been made, and a
  summary of any approvals or objections obtained or raised;

  
	
  (xii)

  	
  Transaction
  timing and process;

  
	
  (xiii)

  	
  Key
  contingencies and conditions precedent; and

  
	
  (xiv)

  	
  Detailed list of remaining due diligence
  requirements.

  



 


5

















 


Second Round Process


 


The Company will consider the first round bids and determine those bids
that will advance to the second round process. 
In evaluating
the Term Sheets, the Company will take into consideration, among other things,
the TEV and EV implied by the proposed transaction, the form, value and
certainty of recovery provided to prepetition creditors and shareholders,
transaction structure and execution risk, including conditions to close,
availability of financing, and approvals required.  Upon completion of this review, the Company
will select a limited number of parties to complete due diligence and provide
the Company with final financing commitments in advance of filing a Plan.


 


The Company will (i) provide additional due diligence information
to prospective acquirers and/or investors (including REP, Brookfield,
Fairholme, and Pershing), to the extent that they have not previously received
such information or new information becomes available, and (ii) negotiate
documentation of proposals selected for the second round.


 


Prospective
acquirers and/or investors will be expected to submit solid fully financed,
binding offers with proposed final documentation (“Final
Proposals”) on or before
June 2, 2010 at 4:00 p.m. (Eastern Time)  to the Bid
Notification Parties listed above.  The
Company and its professionals will share, subject to applicable confidentiality agreements or
provisions, the Final Proposals received during the second round with the advisors
to the Committees.


 


The Company will analyze the Final Proposals received during the second
round, and will engage in discussion with prospective acquirers and/or investors regarding their
respective Final Proposal.  These
discussions will provide prospective acquirers and/or investors, within a
reasonable time before the Company makes a final determination, an opportunity
to improve their proposals to exceed proposals the Company is considering
accepting.  On or before July 2, 2010, the Company intends to select, in its
business judgment and after consultation with the Committees, the proposed
transaction(s) it intends to consummate (the “Successful
Proposal”).


 


Plan Process


 


After selecting the Successful Proposal, the Company, in consultation
with the entity or entities which submitted the Successful Proposal, will
prepare and file the Plan and the accompanying disclosure statement with of the
United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”).  The Company currently anticipates filing the
Plan on or around July 2, 2010. 
Based on this expected filing date, and subject to the Bankruptcy Court’s
schedule, the relevant timeline for the Plan would be:


 


·                  Hearing on the disclosure
statement on or around July 30, 2010;


 


·                  Company to commence
solicitation of the Plan on or around August 6, 2010;


 


·                  Deadline to vote and/or
object to the Plan on or around September 17, 2010;


 


6

















 


·                  Hearing to confirm the Plan on or around September 30, 2010.


 


7

















 


Reservation Of Rights


 


The Company reserves the right, in its sole discretion and subject
to the exercise of its business judgment, to alter or terminate these capital
raising processes or these Bidding Procedures, to alter the assumptions set
forth herein, and/or to terminate discussions with any and all prospective
acquirers and investors at any time and without specifying the reasons
therefore.


 


 


Dated:  April     ,
2010


 


8
















 


EXHIBIT G


 




 





 


[FORM OF]


 


 


WARRANT AND REGISTRATION RIGHTS AGREEMENT


 


 


BETWEEN


 


 


GENERAL GROWTH PROPERTIES, INC.


 


 


AND


 


 


[                                                ]


 


 


WARRANT AGENT


 


 


Dated as of [  ], 2010


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  ORIGINAL ISSUE OF
  WARRANTS

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Form of
  Warrant Certificates

  	
  9

  
	
   

  	
  2.2

  	
  Execution and
  Delivery of Warrant Certificates

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.

  	
  EXERCISE PRICE;
  EXERCISE OF WARRANTS AND EXPIRATION OF WARRANTS

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Exercise Price

  	
  9

  
	
   

  	
  3.2

  	
  Exercise of
  Warrants

  	
  10

  
	
   

  	
  3.3

  	
  Expiration of
  Warrants

  	
  10

  
	
   

  	
  3.4

  	
  Method of
  Exercise; Settlement of Warrant

  	
  10

  
	
   

  	
  3.5

  	
  Transferability
  of Warrants and Common Stock

  	
  11

  
	
   

  	
  3.6

  	
  Compliance with
  Law

  	
  12

  
	
   

  	
   

  	
   

  
	
  4.

  	
  REGISTRATION
  RIGHTS AND PROCEDURES AND LISTING

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Applicability;
  Registration

  	
  14

  
	
   

  	
  4.2

  	
  Expenses of
  Registration

  	
  18

  
	
   

  	
  4.3

  	
  Obligations of
  the Company

  	
  18

  
	
   

  	
  4.4

  	
  Suspension of
  Sales

  	
  21

  
	
   

  	
  4.5

  	
  Termination of
  Registration Rights

  	
  22

  
	
   

  	
  4.6

  	
  Furnishing
  Information

  	
  22

  
	
   

  	
  4.7

  	
  Indemnification

  	
  22

  
	
   

  	
  4.8

  	
  Contribution

  	
  24

  
	
   

  	
  4.9

  	
  Representations,
  Warranties and Indemnities to Survive

  	
  24

  
	
   

  	
  4.10

  	
  Lock-Up
  Agreements

  	
  24

  
	
   

  	
  4.11

  	
  Rule 144
  Reporting

  	
  25

  
	
   

  	
  4.12

  	
  Obtaining
  Exchange Listing

  	
  25

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ADJUSTMENTS AND
  OTHER RIGHTS

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Stock Dividend;
  Subdivision or Combination of Common Stock

  	
  25

  
	
   

  	
  5.2

  	
  Other Dividends
  and Distributions

  	
  26

  
	
   

  	
  5.3

  	
  Rights Offerings

  	
  26

  
	
   

  	
  5.4

  	
  Issuer Tender or
  Exchange Offers

  	
  27

  
	
   

  	
  5.5

  	
  Reorganization,
  Reclassification, Consolidation, Merger or Sale

  	
  27

  
	
   

  	
  5.6

  	
  Other Adjustments

  	
  28

  
	
   

  	
  5.7

  	
  Notice of
  Adjustment

  	
  28

  
	
   

  	
   

  	
   

  
	
  6.

  	
  CHANGE OF CONTROL

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Redemption in
  Connection with a Change of Control Event

  	
  29

  
	
   

  	
  6.2

  	
  Public Stock
  Merger

  	
  29

  
	
   

  	
  6.3

  	
  Mixed
  Consideration Merger

  	
  30

  
	
   

  	
   

  	
   

  
	
  7.

  	
  WARRANT TRANSFER
  BOOKS

  	
  30

  



 


i

















 


	
  8.

  	
  WARRANT HOLDERS

  	
  31

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  No Voting Rights

  	
  31

  
	
   

  	
  8.2

  	
  Right of Action

  	
  31

  
	
   

  	
   

  	
   

  
	
  9.

  	
  WARRANT AGENT

  	
  31

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Nature of Duties
  and Responsibilities Assumed

  	
  31

  
	
   

  	
  9.2

  	
  Compensation and
  Reimbursement

  	
  33

  
	
   

  	
  9.3

  	
  Warrant Agent
  May Hold Company Securities

  	
  33

  
	
   

  	
  9.4

  	
  Resignation and
  Removal; Appointment of Successor

  	
  33

  
	
   

  	
  9.5

  	
  Damages

  	
  34

  
	
   

  	
   

  	
   

  
	
  10.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  34

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Representations and Warranties of the Company

  	
  34

  
	
   

  	
   

  	
   

  
	
  11.

  	
  COVENANTS

  	
  34

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Reservation of
  Common Stock for Issuance on Exercise of Warrants

  	
  34

  
	
   

  	
  11.2

  	
  Notice of
  Distributions

  	
  35

  
	
   

  	
  11.3

  	
  Replacement of
  Warrants

  	
  35

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MISCELLANEOUS

  	
  35

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Money and Other
  Property Deposited with the Warrant Agent

  	
  35

  
	
   

  	
  12.2

  	
  Payment of Taxes

  	
  36

  
	
   

  	
  12.3

  	
  Surrender of
  Certificates

  	
  36

  
	
   

  	
  12.4

  	
  Mutilated, Destroyed,
  Lost and Stolen Warrant Certificates

  	
  36

  
	
   

  	
  12.5

  	
  Removal of
  Legends

  	
  37

  
	
   

  	
  12.6

  	
  Notices

  	
  37

  
	
   

  	
  12.7

  	
  Applicable Law;
  Jurisdiction

  	
  38

  
	
   

  	
  12.8

  	
  Persons
  Benefiting

  	
  38

  
	
   

  	
  12.9

  	
  Relationship to
  Investment Agreement and Stock Purchase Agreements

  	
  39

  
	
   

  	
  12.10

  	
  Counterparts

  	
  39

  
	
   

  	
  12.11

  	
  Amendments

  	
  39

  
	
   

  	
  12.12

  	
  Headings

  	
  39

  
	
   

  	
  12.13

  	
  Entire Agreement

  	
  40

  
	
   

  	
  12.14

  	
  Specific Performance

  	
  40

  



 


ii

















 


List of
Exhibits


 


EXHIBIT
A — Form of Warrant Certificate


 


EXHIBIT
B — Form of Assignment


 


EXHIBIT
C — Option Pricing Assumptions / Methodology


 


SCHEDULE
A — Allocations of Warrants and Underlying Shares to Initial Investors


 


SCHEDULE
B — Warrant Agent Compensation


 


iii

















 


WARRANT AND
REGISTRATION RIGHTS AGREEMENT


 


WARRANT
AND REGISTRATION RIGHTS AGREEMENT, dated as of
[    ], 2010 (together with the Warrants, this “Agreement”),
by and between General Growth Properties, Inc., a Delaware corporation
(the “Company”), and
[                                        ],
a
[                            ]
(together with its successors and assigns, the “Warrant Agent”).


 


WITNESSETH:


 


WHEREAS, the Company
is issuing and delivering warrant certificates (the “Warrant Certificates”)
evidencing Warrants to purchase up to an aggregate of 120,000,000 shares of its
Common Stock, subject to adjustment, including (a) 60,000,000 shares of
its Common Stock, subject to adjustment, in connection with that certain
Cornerstone Investment Agreement, dated as of March 31, 2010, by and between
REP Investments LLC and the Company (the “Investment Agreement”), (b) 42,857,143
shares of its Common Stock, subject to adjustment, in connection with that
certain Stock Purchase Agreement, dated as of March 31, 2010, by and
between each of The Fairholme Fund and The Fairholme Focused Income Fund (each
a “Fairholme Purchaser”, and collectively, the “Fairholme Purchasers”)
and the Company (the “Fairholme Stock Purchase Agreement”) and (c) 17,142,857
shares of its Common Stock, subject to adjustment, in connection with that
certain Stock Purchase Agreement, dated as of March 31, 2010, by and
between each of Pershing Square, L.P., Pershing Square II, L.P., Pershing
Square International, Ltd. and Pershing Square International V, Ltd. (each, a “Pershing
Square Purchaser”, collectively, the “Pershing Square Purchasers”,
and each of the Brookfield Purchaser (as defined herein), the Fairholme
Purchasers and Pershing Square Purchasers, a “Purchaser”) and the
Company (the “Pershing Square Stock Purchase Agreement” and, together
with the Fairholme Stock Purchase Agreement, the “Stock Purchase Agreements”) pursuant to each of which each Purchaser has agreed to make an
equity investment in the Company upon the terms and subject to the conditions
specified therein; and


 


WHEREAS, the Company
desires the Warrant Agent to act on behalf of the Company, and the Warrant
Agent is willing so to act, in connection with the issuance, transfer,
exchange, replacement and exercise of the Warrant Certificates and other
matters as provided herein;


 


NOW, THEREFORE, in consideration of the foregoing and for the
purpose of defining the terms and provisions of the Warrants and the respective
rights and obligations thereunder of the Company and the record holders of the
Warrants, the Company and the Warrant Agent each hereby agree as follows:


 


1.                                      DEFINITIONS.


 


As
used in this Agreement, the following terms shall have the following meanings:


 


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, (i) “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 and (ii) none of the
Initial Investors or their Affiliates shall be deemed to “control” the Company
or any of the Company’s controlled Affiliates prior to such Initial Investor or
Affiliate, as


 

















 


applicable,
acquiring or becoming part of the acquiring group for purposes of clauses (i) or
(ii) or combining with the Company for purposes of clause (iii) of
the definition of Change of Control Event.


 


Announcement
Date:  the meaning set forth in Section 5.4.


 


Board:  the board of directors of the Company.


 


Brookfield
Consortium Member:  as defined in the Investment Agreement.


 


Brookfield
Investors: means, collectively, the Brookfield Consortium
Members.


 


Brookfield
Purchaser:  the
Purchaser defined in the Investment Agreement.


 


Business
Day:  any day that is not a
Saturday, Sunday, or a day on which banks in New York, New York are required or
permitted to be closed.


 


Cash
Consideration Ratio:  means, in
connection with a Mixed Consideration Merger, a fraction, (i) the
numerator of which shall be the aggregate Fair Market Value of cash and all
other property (other than Public Stock) that holders of Common Stock will
receive for each such share of Common Stock in
connection with such Mixed Consideration Merger, and (ii) the
denominator of which shall be the Fair Market Value of all of the consideration
holders of Common Stock will receive for each such share of Common Stock in
connection with such Mixed Consideration Merger; provided, that, if the
holders of Common Stock have the opportunity to elect the consideration to be
received in such Mixed Consideration Merger, the Cash Consideration Ratio shall
be determined by reference to the weighted average of the types and amounts of
consideration received in such transaction in respect of shares of Common Stock
held by holders who are not affiliated with the Company or any entity acquiring
the Company.


 


Cash
Redemption Value:  the meaning
set forth in Section 6.1.


 


Certificate
of Incorporation:  the Company’s
certificate of incorporation (or equivalent organizational document), as
amended from time to time.


 


Change
of Control Event:  an event or
series of events, by which (i) any Person or group of Persons shall have
acquired beneficial ownership (within the meaning of Rule 13d-3(a) promulgated
by the SEC under the Exchange Act), directly or indirectly, of fifty percent
(50%) or more (by voting power) of the outstanding shares of Voting Securities,
(ii) all or substantially all of the consolidated assets of the Company
are sold, leased (other than leases to tenants in the ordinary course of
business), exchanged or transferred to any Person or group of Persons, (iii) the
Company is consolidated, merged, amalgamated, reorganized or otherwise enters
into a similar transaction in which it is combined with another Person (in each
case, other than pursuant to the Plan), unless shares of Common Stock held by
holders who are not affiliated with the Company or any entity acquiring the
Company remain unchanged or are exchanged for, converted into or constitute solely
(except to the extent of applicable appraisal rights or cash received in lieu
of fractional shares) the right to receive as consideration Public Stock and
the Persons who beneficially own the outstanding Voting Securities of the
Company immediately before consummation of the transaction beneficially own a
majority (by voting power) of the 


 


2

















 


outstanding
Voting Securities of the combined or surviving entity or new parent immediately
thereafter, (iv) the Company engages in a reclassification or similar
transaction pursuant to which shares of Common Stock are converted into the
right to receive anything other than Public Stock, or (v) the holders of
capital stock of the Company have approved any plan or proposal for the
liquidation or dissolution of the Company; provided that with respect to
an election by any Holder pursuant to Section 6.1, no event or series of
events shall constitute a Change of Control Event if (x) such event or
series of events is not approved by a majority of the disinterested directors
of the Company and (y) such Holder or any of its Affiliates is the
acquiror or part of the acquiring group for purposes of clause (i) or (ii) above
or is combined with the Company for purposes of clause (iii) above.  For purposes of this definition, a “group”
means a group of Persons within the meaning of Rule 13d-5 under the
Exchange Act.


 


Closing
Sale Price:  as of any
date, the last reported per share sales price of a share of Common Stock or the
applicable security on such date (or, if no last reported sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices on such date)
as reported on the New York Stock Exchange, or if the Common Stock or such
other security is not listed on the New York Stock Exchange, as reported by the
principal U.S. national or regional securities exchange or quotation system on
which the Common Stock or such other security is then listed or quoted;
provided, however, that in the absence of such listing or quotations, the
Closing Sale Price shall be determined by an Independent Financial Expert
appointed for such purpose, using one or more valuation methods that the
Independent Financial Expert in its best professional judgment determines to be
most appropriate, assuming such Common Stock or securities are fully
distributed and are to be sold in an arm’s-length transaction and there was no
compulsion on the part of any party to such sale to buy or sell and taking into
account all relevant factors.


 


Code:  the U.S. Internal Revenue Code of 1986, as
amended.


 


Common
Stock:  the common stock, par value
$0.01, of the Company.


 


Company:  the meaning set forth in the preamble to this
Agreement and its successors and assigns.


 


Distribution:  the meaning set forth in Section 5.2.


 


Exchange
Act:  the U.S. Securities Exchange
Act of 1934, as amended.


 


Exercise
Date:  the meaning set forth in Section 3.4.


 


Exercise
Price:  the meaning set forth in Section 3.1.


 


Expiration
Date:  the meaning set forth in Section 3.3.


 


Fairholme
Investors: all members, collectively, of the Fairholme
Purchaser Group.


 


Fairholme
Purchasers:  the meaning
set forth in the recitals hereto.


 


3
















 


Fairholme
Purchaser Group: the Purchaser Group defined in the Fairholme Stock
Purchase Agreement.


 


Fairholme
Stock Purchase Agreement:  the
meaning set forth in the recitals hereto.


 


Fair
Market Value:


 


(i)                                     in the case of
shares or securities, the average of the daily volume weighted average prices
per share of such shares or securities for the ten consecutive trading days
immediately preceding the day as of which Fair Market Value is being
determined, as reported on the New York Stock Exchange, or if such shares or
securities are not listed on the New York Stock Exchange, as reported by the
principal U.S. national or regional securities exchange or quotation system on
which such shares or securities are then listed or quoted; provided, however,
that in the absence of such listing or quotations, the Fair Market Value of
such securities shall be the fair market value per share or unit of such shares
or securities as determined by an Independent Financial Expert appointed for
such purpose, using one or more valuation methods that the Independent
Financial Expert in its best professional judgment determines to be most
appropriate, assuming such shares or other securities are fully distributed and
are to be sold in an arm’s-length transaction and there was no compulsion on
the part of any party to such sale to buy or sell and taking into account all
relevant factors.


 


(ii)                                  in the case of cash, the
amount thereof.


 


(iii)                               in the case of other
property, the Fair Market Value of such property shall be the fair market value
thereof as determined by an Independent Financial Expert appointed for such
purpose, using one or more valuation methods that the Independent Financial
Expert in its best professional judgment determines to be most appropriate,
assuming such property is to be sold in an arm’s-length transaction and there
was no compulsion on the part of any party to such sale to buy or sell and
taking into account all relevant factors.


 


Full
Physical Settlement:  the
settlement method pursuant to which an exercising Holder shall be entitled to
receive from the Company, for each Warrant exercised, a number of shares of
Common Stock equal to the Full Physical Share Amount in exchange for payment by
the Holder of the aggregate Exercise Price applicable to such Warrant.


 


Full
Physical Share Amount:  the
meaning set forth in Section 3.4(a).


 


GGO
Warrants: the meaning set forth in Section 11.3.


 


Holders:  from time to time, the holders of the
Warrants and, unless otherwise provided or indicated herein, the holders of the
Registrable Securities.


 


Independent
Financial Expert:  a
nationally recognized financial advisory firm mutually agreed by the Company
and the Majority Holders. If the
Company and the Majority Holders are unable
to agree on an Independent Financial Expert for a valuation contemplated
herein, each of them shall choose promptly a separate Independent Financial
Expert and these two Independent Financial Experts shall choose promptly a
third Independent Financial Expert to conduct such valuation.


 


4

















 


Initial
Investor:  means the
applicable Purchaser; provided that, solely
for the purposes of this definition, in the event the Brookfield Purchaser is
not in existence, the Brookfield Purchaser shall be Brookfield Asset Management
Inc. or an Affiliate designated by Brookfield Asset Management Inc.


 


Initiating
Holder(s):  the meaning
set forth in Section 4.1(b).


 


Investment
Agreement:  the meaning
set forth in the recitals hereto.


 


Loss:  the meaning set forth in Section 4.7(a)(i).


 


Majority
Holders:  means at any time Holders of a
majority in number of the outstanding Warrants not held by the Company or any
of the Company’s Affiliates.


 


Mixed
Consideration Merger:  means an
event described in clause (iii) of the definition of Change of Control
Event pursuant to which all of the outstanding shares of Common Stock held by
holders who are not affiliated with the Company or any entity acquiring the
Company are exchanged for, converted into or constitute solely (except to the extent
of applicable appraisal rights or cash received in lieu of fractional shares)
the right to receive as consideration a combination of (i) Public Stock
and (ii) other securities, cash or other property.


 


Net
Share Amount:  the meaning
set forth in Section 3.4(b).


 


Net
Share Settlement:  the
settlement method pursuant to which an exercising Holder shall be entitled to
receive from the Company, for each Warrant exercised, a number of shares of
Common Stock equal to the Net Share Amount without any payment therefor.


 


New
Warrants:  the meaning
set forth in Section 11.3.


 


Organic
Change:  the meaning set forth in Section 5.5.


 


Other
Stockholders:  means
Persons (other than Holders) who, by virtue of agreements with the Company
(other than this Agreement), are entitled to include their securities in a
registration.


 


Pershing
Investors: all members, collectively, of the Pershing
Purchaser Group.


 


Pershing
Square Purchasers:  the meaning
set forth in the recitals hereto.


 


Pershing
Purchaser Group: the Purchaser Group defined in the Pershing Stock
Purchase Agreement.


 


Pershing
Square Stock Purchase Agreement:  the meaning set forth in the recitals hereto.


 


Person:  any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.


 


5

















 


Plan:  the plan of reorganization as contemplated by
the Plan Term Sheet initially attached as Exhibit A to the Investment
Agreement and Stock Purchase Agreements.


 


Preliminary
Change of Control Event:  with
respect to the Company, the first public announcement that describes the economic terms of a transaction that results in
a Change of Control Event.


 


Premium
Per Post-Tender Share:  the
meaning set forth in Section 5.4.


 


Prospectus: the
prospectus included in any Registration Statement, as amended or supplemented
by any prospectus supplement with respect to the terms of the offering of any
of the Registrable Securities covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.


 


Public
Stock:  means common stock listed on a
recognized U.S. national securities exchange with an aggregate market
capitalization (held by non-Affiliates of the issuer) in excess of $1 billion
in Fair Market Value.


 


Purchaser
Group:  (a) means with respect to
Brookfield Purchaser, the Brookfield Consortium Members, (b) with respect
to Fairholme Purchasers, the Fairholme Purchaser Group and (c) with
respect to Pershing Square Purchasers, the Pershing Purchaser Group.


 


Public
Stock Merger:  means an
event described in clause (iii) of the definition of Change of Control
Event pursuant to which all of the outstanding shares of Common Stock held by
holders who are not affiliated with the Company or any entity acquiring the
Company are exchanged for, converted into or constitute solely (except to the
extent of applicable appraisal rights or cash received in lieu of fractional
shares) the right to receive as consideration Public Stock.


 


Purchaser:  the meaning set forth in the recitals hereto.


 


Qualifying
Employee Stock:  means (i) rights
and options issued in the ordinary course of business under employee benefits
plans and any securities issued after the date hereof upon exercise of such
rights and options and (ii) restricted stock and restricted stock units
issued after the date hereof in the ordinary course of business under employee
benefit plans and securities issued after the date hereof in settlement of any
such restricted stock units.


 


Registrable
Securities:  means all
Warrants and shares of Common Stock issuable under the Warrants to each Initial
Investor or otherwise held by each Initial Investor as of the date hereof and
at any time during the term of this Agreement. Registrable Securities shall
continue to be Registrable Securities (whether they continue to be held by each
Initial Investor or are transferred or sold to other Persons pursuant to this
Agreement) until (i) they are sold pursuant to an effective Registration
Statement under the Securities Act, (ii) after such securities have been
sold pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A), (iii) they shall have otherwise been transferred and new
securities not subject to transfer restrictions under any federal securities
laws and not bearing any legend restricting further transfer shall have been
delivered by the Company, all applicable holding periods shall have expired,
and no other 


 


6

















 


applicable
and legally binding restriction on transfer by the holder thereof shall exist, (iv) they are eligible for sale pursuant to Rule 144 under the
Securities Act without limitation thereunder on volume or manner of sale, or (v) when
such securities cease to be outstanding.


 


Registration
Expenses:  mean all
expenses incurred by the Company in effecting any registration pursuant to this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, the reasonable fees and disbursements of one counsel for all
Holders (which counsel shall be selected by a
majority of the selling Holders), fees and reasonable disbursements of
counsel for the Company, Blue Sky fees and expenses, and expenses of the
Company’s independent accountants in connection with any regular or special
reviews or audits incident to or required by any such registration, but shall
not include Selling Expenses.


 


Registration
Rights:  the rights of Holders set
forth in Article 4 to have Registrable Securities registered under
the Securities Act for sale under one or more effective Registration
Statements.


 


Registration
Statement:  any
registration statement filed by the Company under the Securities Act pursuant
to the Registration Rights, including the related Prospectus, any amendments
and supplements to such Registration Statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in such
registration statement.


 


register, registered,
and registration:  shall refer to,
unless the context dictates otherwise, a registration effected by preparing and
(a) filing a Registration Statement in compliance with the Securities Act
and applicable rules and regulations thereunder, and the declaration or
ordering of effectiveness of such Registration Statement or (b) filing a
Prospectus and/or prospectus supplement in respect of an appropriate effective
Registration Statement.


 


Rule 144, Rule 405
and Rule 415:  mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.


 


Sale:  the meaning set forth in Section 3.6(a) of
this Agreement.


 


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


 


S-1
Registration Statement: 
means a registration statement of the Company on Form S-1 (or any
comparable or successor form) filed with the SEC registering any Registrable
Securities.


 


SEC:  the U.S. Securities and Exchange Commission.


 


Securities
Act:  the U.S. Securities Act of
1933, as amended.


 


Securities
Exchange Act:  the U.S.
Securities Exchange Act of 1934, as amended.


 


7

















 


Sell: the meaning
set forth in Section 3.6(a) of this Agreement.


 


Selling
Expenses:  mean all
discounts, selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities and all fees and disbursements of counsel for each of
the Holders other than the reasonable fees and expenses of one counsel for all
of the Holders which shall be paid for by the Company as provided in the
definition of Registration Expenses.


 


Settlement
Date:  means, in respect of a Warrant
that is exercised hereunder, a reasonable time, not to exceed three Business
Days, immediately following the Exercise Date for such Warrant.


 


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


 


Stock
Consideration Ratio:  means, in
connection with a Mixed Consideration Merger, 1 — the Cash Consideration Ratio
for such Mixed Consideration Merger.


 


Stock
Dividend:  the meaning
set forth in Section 5.1.


 


Stock
Purchase Agreements:  the meaning set forth in the recitals to this
Agreement.


 


Supermajority Holders:  means at any time Holders of two-thirds or greater in number of the outstanding Warrants
not held by the Company or any of the Company’s Affiliates.


 


Suspension
Limit: the meaning set forth in Section 4.4.


 


Underlying
Common Stock:  the shares
of Common Stock issuable or issued upon the exercise of the Warrants.


 


Voting
Securities:  means any
securities of the Company, surviving entity or parent, as applicable, having
power generally to vote in the election of directors of the Company, surviving
entity or parent, as applicable.


 


Warrant
Agent:  the meaning set forth in the
preamble to this Agreement.


 


Warrant
Certificates:  the meaning
set forth in the recitals to this Agreement.


 


Warrants:  the warrants issued by the Company from time
to time pursuant to this Agreement.


 


8

















 


2.                                      ORIGINAL ISSUE
OF WARRANTS.


 


2.1                                 Form of
Warrant Certificates.  The Warrant
Certificates shall be in registered form only and substantially in the form
attached hereto as Exhibit A, shall be dated the date on which
countersigned by the Warrant Agent and may have such legends and endorsements
typed, stamped, printed, lithographed or engraved thereon as provided in Section 3.6(f) and
as required by the Certificate of Incorporation or as may be required to comply
with any law or with any rule or regulation pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be listed.


 


2.2                                 Execution and
Delivery of Warrant Certificates.


 


(a)                                  Simultaneously
with the execution of this Agreement, Warrant Certificates evidencing such
number of Warrants as set forth on Schedule A entitling the holder to
purchase an aggregate number of shares of Common Stock as set forth on Schedule
A, in each case, as with respect to each Initial Investor (or their
designee(s) in accordance with the next sentence) and subject to
adjustment, shall be executed by the Company and delivered to the Warrant Agent
for countersignature, and the Warrant Agent shall thereupon countersign and
deliver such Warrant Certificates to each Initial Investor (or their designee(s) in
accordance with the next sentence).  Each
Initial Investor, in its sole discretion, may designate that some or all of its
Warrants and Warrant Certificates be issued in the name of, and delivered to,
one or more of the members of its Purchaser Group.


 


(b)                                 From time to
time, the Warrant Agent shall countersign and deliver Warrant Certificates in
required denominations to Persons entitled thereto in connection with any
transfer or exchange permitted under this Agreement. The Warrant Agent is
hereby irrevocably (but subject to Article 9) authorized to
countersign and deliver Warrant Certificates as required by Section 2.2,
Section 3.4, Article 7, and Section 12.4 or
otherwise as provided herein. The Warrant Certificates shall be executed on
behalf of the Company by its President or Vice President, either manually or by
facsimile signature printed thereon. The Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company whose signature
shall have been placed upon any of the Warrant Certificates shall cease to be
such officer of the Company before countersignature by the Warrant Agent and issue
and delivery thereof, such Warrant Certificates may, nevertheless, be
countersigned by the Warrant Agent and issued and delivered with the same force
and effect as though such Person had not ceased to be such officer of the
Company.


 


3.                                      EXERCISE PRICE; EXERCISE OF
WARRANTS AND EXPIRATION OF WARRANTS.


 


3.1                                 Exercise Price.  Each Warrant Certificate shall, when
countersigned by the Warrant Agent, entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase, except as provided in Section 3.3
hereof, one share of Common Stock for each Warrant represented thereby, subject
to all adjustments made on or prior to the date of exercise thereof, at an
exercise price (the “Exercise Price”) of $15.00 per share, subject to
all adjustments made on or prior to the date of exercise thereof as herein
provided.


 


9

















 


3.2                                 Exercise of
Warrants.  The
Warrants shall be exercisable in whole or in part from time to time on any
Business Day beginning on the date hereof and ending on the Expiration Date, in
the manner provided for herein.


 


3.3                                 Expiration of
Warrants.  Any
unexercised Warrants shall expire and the rights of the Holders of such
Warrants to purchase Underlying Common Stock shall terminate at the close of
business on
[                    ],
2017(1) (the “Expiration Date”).


 


3.4                                 Method of
Exercise; Settlement of Warrant.  In order to exercise a Warrant, the Holder
thereof must (i) surrender the Warrant Certificate evidencing such Warrant
to the Warrant Agent, with the form on the reverse of or attached to the
Warrant Certificate duly executed (the date of the surrender of such Warrant
Certificate, the “Exercise Date”), and (ii) if Net Share Settlement
is not elected, deliver in full the aggregate Exercise Price then in effect for
the shares of Underlying Common Stock as to which a Warrant Certificate is
submitted for exercise, not later than the Settlement Date as more fully set
forth herein.  Full Physical Settlement
shall apply to each Warrant unless the Holder elects for Net Share Settlement
to apply upon exercise of such Warrant. 
Such election shall be made in the form on the reverse of or attached to
the Warrant Certificate for such Warrant.


 


(a)                                  If Full
Physical Settlement is applicable with respect to the exercise of a Warrant,
then, for each Warrant exercised hereunder (i) prior to 11:00 a.m.,
New York City time, on the Settlement Date for such Warrant, the Holder shall
pay the aggregate Exercise Price (determined as of such Exercise Date) for the number
of shares of Common Stock obtainable upon exercise of such Warrant at such time
by federal wire or other immediately available funds payable to the order of
the Company to the account maintained by the Warrant Agent and notified to the
Holder upon request of the Holder, and (ii) on the Settlement Date,
following receipt by the Warrant Agent of such Exercise Price, the Company
shall cause to be delivered to the Holder the number of shares of Common Stock
obtainable upon exercise of each Warrant at such time (the “Full Physical
Share Amount”), together with cash in respect of any fractional shares of
Common Stock as provided in Section 3.4(f).


 


(b)                                 If Net Share
Settlement is applicable with respect to the exercise of a Warrant, then, for
each Warrant exercised hereunder, on the Settlement Date for such Warrant, the
Company shall cause to be delivered to the Holder a number of shares of Common
Stock (which in no event will be less than zero) (the “Net Share Amount”)
equal to (i) the number of shares of Common Stock obtainable upon exercise
of such Warrant at such time, multiplied by (ii) the Closing Sale Price on
the relevant Exercise Date, minus the Exercise Price (determined as of such
Exercise Date), divided by (iii) such Closing Sale Price, together with
cash in respect of any fractional shares of Common Stock as provided in Section 3.4(f).


 


(c)                                  Upon surrender
of a Warrant Certificate in conformity with the foregoing provisions and
receipt by the Warrant Agent of the Exercise Price therefor or, in the event of
Net Share Settlement, upon the election by a Holder for Net Share Settlement,
the Warrant Agent shall thereupon promptly notify the Company, and the Company
shall instruct its transfer agent 


 






(1)                                  Note to Draft: Insert the
date that is the seventh anniversary of the date on which the Warrants are
issued.


 


10

















 


to transfer to the Holder of
such Warrant Certificate appropriate evidence of ownership of any shares of
Underlying Common Stock or other securities or property to which the Holder is
entitled, registered or otherwise placed in, or payable to the order of, such
name or names as may be directed in writing by the Holder, and shall deliver
such evidence of ownership to the Person or Persons entitled to receive the
same, together with cash in respect of any fractional shares of Common Stock as
provided in Section 3.4(f), provided that if the Holder shall
direct that such securities be registered in a name other than that of the
Holder, such direction shall be tendered in conjunction with a signature
guarantee from an eligible guarantor institution participating in a signature
guarantee program approved by the Securities Transfer Association, and any
other reasonable evidence of authority that may be required by the Warrant
Agent.  Upon receipt by the Warrant Agent
of the Exercise Price therefor or, in the event of Net Share Settlement, upon
the election by a Holder for Net Share Settlement, a Holder shall be deemed to
own and have all of the rights associated with any Underlying Common Stock or
other securities or property to which such Holder is entitled pursuant to this
Agreement upon the surrender of a Warrant Certificate in accordance with this
Agreement.


 


(d)                                 The Company
acknowledges that the bank accounts maintained by the Warrant Agent in
connection with its performance under this Agreement shall be in the Warrant
Agent’s name and that the Warrant Agent may receive investment earnings in
connection with the investment at the Warrant Agent’s risk and for its benefit
of funds held in those accounts from time to time.  The Warrant Agent shall remit any payments
received in connection with the exercise of Warrants to the Company as soon as
practicable and in any event within three Business Days by federal wire or
other immediately available funds to an account selected by the Company and
notified to the Warrant Agent.


 


(e)                                  If fewer than
all the Warrants represented by a Warrant Certificate are surrendered, such
Warrant Certificate shall be surrendered and a new Warrant Certificate of the
same tenor and for the number of Warrants that were not surrendered shall
promptly be executed and delivered to the Warrant Agent by the Company. The
Warrant Agent shall promptly countersign the new Warrant Certificate, register
it in such name or names as may be directed in writing by the Holder and
deliver the new Warrant Certificate to the Person or Persons entitled to
receive the same.


 


(f)                                    The Company
shall not be required to issue any fraction of a share of Common Stock upon
exercise of any Warrants; provided, that, if more than one Warrant shall be
exercised hereunder at one time by the same Holder, the number of full shares
of Common Stock which shall be issuable upon exercise thereof shall be computed
on the basis of all Warrants so exercised, and shall include the aggregation of
all fractional shares of Common Stock issuable upon exercise of such
Warrants.  If after giving effect to the
aggregation of all shares of Common Stock (and fractions thereof) issuable upon
exercise of Warrants by the same Holder at one time as set forth in the
previous sentence, any fraction of a share of Common Stock would, except for
the provisions of this Section 3.4(f), be issuable on the exercise
of any Warrant or Warrants, the Company shall pay the Holder cash in lieu of
such fractional share valued at the Closing Sale Price on the Exercise Date.


 


3.5                                 Transferability
of Warrants and Common Stock.  Except
as any Holder may otherwise agree in writing, any Warrants, all rights with
respect thereto and any shares of 


 


11

















 


Underlying Common Stock may
be sold, transferred or disposed of, in whole or in part, without any
requirement of obtaining the consent of the Company to so sell, transfer or dispose
of, provided that any such sale, transfer or disposition shall be in accordance
with the terms of this Agreement, including, without limitation, Article 7
hereof.


 


3.6                                 Compliance with
Law.  (a) To the extent the Warrants are Registrable Securities, no Warrant may be
exercised (and the Warrant Agent shall be under no obligation to process any
exercise), and no Registrable Securities may be sold, transferred,
hypothecated, pledged or otherwise disposed of (any such sale, transfer or
other disposition, a “Sale”, and the
action of making any such sale, transfer or other disposition, to “Sell”),
except in compliance with applicable Federal and state securities and other
applicable laws and this Section 3.6.


 


(b)                                 A Holder may
exercise its Warrants if it is an “accredited investor” or a “qualified
institutional buyer”, as defined in Regulation D and Rule 144A under the
Securities Act, respectively, and, a Holder may Sell its
Registrable Securities to a transferee that is an “accredited investor” or a “qualified
institutional buyer”, as such terms are defined in such Regulation and such
Rule, respectively, provided that each of the following conditions is
satisfied:


 


(i)                                     such Holder or
transferee, as the case may be, provides certification establishing to the reasonable
satisfaction of the Company that it is an “accredited investor”;


 


(ii)                                  such Holder or
transferee represents to the Company in writing that it is acquiring the
Underlying Common Stock (in the case of an exercise) or Registrable Securities
(in the case of a Sale) for its own account and
that it is not acquiring such Underlying Common Stock or the Registrable
Securities with a view to, or for offer or Sale in
connection with, any distribution thereof (within the meaning of the Securities
Act) that would be in violation of the securities laws of the United States or
any applicable state thereof, but subject, nevertheless, to the disposition of
its property being at all times within its control;


 


(iii)                               such Holder or
transferee agrees to be bound by the provisions of this Section 3.6
with respect to any exercise of the Warrants and any Sale of the Registrable Securities; and


 


(iv)                              such Holder or
transferee represents and warrants in writing to the Company that the Holder or
transferee has sufficient knowledge and experience in investment transactions
of this type to evaluate the merits and risks of the exercise of its Warrants
and/or purchase of the Underlying Common Stock, as applicable.


 


(c)                                  A Holder may
exercise its Warrants and may Sell its
Registrable Securities in accordance with Regulation S under the Securities
Act.


 


(d)                                 A Holder may
exercise its Warrants or Sell its
Registrable Securities if:


 


12




















 


(i)                                     such Holder
gives written notice to the Company of its intention to exercise or effect such
Sale, which notice shall
describe the manner and circumstances of the proposed transaction in reasonable
detail;


 


(ii)                                  such notice
includes a customary opinion from internal or external counsel to the Holder to
the effect that, in either case, such proposed exercise or Sale may be effected without registration under the Securities Act or
under applicable Blue Sky laws; and


 


(iii)                               such Holder or
transferee complies with Sections 3.6(b)(ii), 3.6(b)(iii), and 3.6(b)(iv).


 


(e)                                  subject to Section 12.5,
each certificate representing securities issued pursuant to the exercise of the
Warrants shall bear the following legend:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. SUCH SECURITIES MAY BE OFFERED, SOLD OR TRANSFERRED ONLY
IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS AND SUBJECT TO THE PROVISIONS OF THE WARRANT AND REGISTRATION
RIGHTS AGREEMENT DATED AS OF [    ], 2010 BETWEEN GENERAL
GROWTH PROPERTIES, INC. (THE “COMPANY”), AND
[                                      ],
WARRANT AGENT. A COPY OF SUCH WARRANT AND REGISTRATION RIGHTS AGREEMENT IS
AVAILABLE AT THE OFFICES OF THE COMPANY.


 


(f)                                    subject to Section 12.5,
each certificate representing the Warrants shall bear the following legend:


 


THESE
WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS. THESE WARRANTS AND SUCH SECURITIES MAY BE
OFFERED, SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH
ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT TO THE PROVISIONS
OF THE WARRANT AND REGISTRATION RIGHTS AGREEMENT DATED AS OF
[    ], 2010 BETWEEN GENERAL GROWTH PROPERTIES, INC.  (THE “COMPANY”) AND
[                              ],
WARRANT AGENT. A COPY OF SUCH 


 


13

















 


WARRANT
AND REGISTRATION RIGHTS AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.


 


(g)                                 the provisions
of Section 3.6 shall not apply to,
and any Holder may exercise its Warrants and Sell its Registrable Securities:


 


(i)                                     in a
transaction that is registered under the Securities Act; and


 


(ii)                                  in a
transaction pursuant to Rule 144 of
the Exchange Act; and


 


(iii)                               in a transaction following receipt of a legal opinion of counsel to a Holder
that the applicable Registrable Securities are eligible for resale by the
Holder without volume limitations or other limitations under Rule 144.


 


4.                                      REGISTRATION RIGHTS AND
PROCEDURES AND LISTING.


 


4.1                                 Applicability;
Registration.(2)


 


(a)                                  Subject to the
limitations and conditions of this Section 4.1, upon the request of
any Holder, the Company shall use reasonable best efforts to cause a Shelf
Registration Statement to be declared or become effective covering all
Registrable Securities no later than the effective date of a plan of
reorganization of the Company (including without limitation the Plan), and use
reasonable best efforts to keep such Shelf Registration Statement continuously
effective and in compliance with the Securities Act and usable for resale of
all Registrable Securities for the period from the date of its initial
effectiveness until such time as there are no Registrable Securities remaining
in accordance with such plan of distribution as may be reasonably requested by
Holders of Registrable Securities from time to time.  The underwriting provisions set forth in Section 4.1(e) hereof
shall apply to an underwritten public offering requested by a Holder using such
Shelf Registration Statement effected pursuant to this Section 4.1(a),
provided, that the limitations set forth in Section 4.1(e) shall
only apply with respect to such underwritten public offering and not more
generally to the Shelf Registration Statement.


 


(b)                                 Subject to the
conditions of this Section 4.1, if the Company shall receive from
any Holder or group of Holders (such
Holder or group of Holders, the “Initiating Holder(s)”), a written
request that the Company effect a registration  with respect to
Registrable Securities owned by such Initiating Holder(s) having an
estimated aggregate Fair Market Value of at least $75 million, the Company
shall:


 


(i)                                     use its
reasonable best efforts to file a
Registration Statement with the SEC in accordance with the request of the
Initiating Holder(s), including without limitation the
method of disposition specified therein and covering resales of the
Registrable Securities requested to be registered, as promptly as
reasonably practicable but no later than (x) in the case of a Registration
Statement other than an S-1 Registration 


 






(2)                                  Note to Draft:  Lower dollar thresholds in the registration
rights section to be applicable to GGO Warrants.


 


14

















 


Statement,
within 30 days of receipt of the
request or (y) in the case of an S-1 Registration Statement, within 60 days of receipt of the request;


 


(ii)                                  use reasonable best efforts to cause such Registration Statement to be declared or become
effective as promptly as practicable, but in no event later than 60 days after the date of initial filing of a Registration Statement
pursuant to Section 4.1(b)(i); and


 


(iii)                               use reasonable best efforts to keep such Registration Statement continuously effective and
in compliance with the Securities Act and usable for resale of such Registrable
Securities for the period as requested in
writing by the Initiating Holder(s) or such longer period as may be
requested in writing by any Holder participating in such registration (which
periods shall be extended to the extent of any suspensions of sales pursuant to
Sections 4.1(c) or 4.4);


 


provided, that (x) the
number of demand registrations that the Brookfield Investors shall be entitled
to effect pursuant to this Section 4.1(b) shall be no more
than three such demand registrations in total and no more than one such demand
registration in any 12-month period, (y) the number of demand
registrations that The Fairholme Fund shall be entitled to effect pursuant to
this Section 4.1(b) shall be no more than three such demand
registrations in total and no more than one such demand registration in any
12-month period (The Fairholme Focused Income Fund will not be entitled to
exercise demand registration rights under this Section 4.1(b)), and
(z) the number of demand registrations that the Pershing Investors shall
be entitled to effect pursuant to this Section 4.1(b) shall be
no more than three such demand registrations in total and no more than one such
demand registration in any 12-month period; provided, further,
that the Company shall be permitted, with the consent of the Initiating Holder(s) not
to be unreasonably withheld, to file a post-effective amendment or prospectus
supplement to the Shelf Registration Statement filed pursuant to Section 4.1(a) in
lieu of an additional registration statement pursuant to Section 4.1(b) to
the extent the Company reasonably determines that the Registrable Securities of
the Initiating Holder(s) may be sold thereunder by such Initiating Holder(s) pursuant
to their intended plan of distribution (in which case such post-effective
amendment or demand registration statement shall not be counted against the
limited number of demand registrations). 
It shall not be unreasonable if, following the recommendation of an
underwriter, the Initiating Holder(s) do not consent to the Company filing
a post-effective amendment or prospectus supplement to the Shelf Registration
Statement filed pursuant to Section 4.1(a) in lieu of an
additional registration statement requested by the Initiating Holder(s).


 


(c)                                  Notwithstanding
anything to the contrary contained herein, the Company shall not be required to
effect a registration pursuant to this Section 4.1: (i) with
respect to securities that are not Registrable Securities; (ii) subject to
Section 4.1(h), during any Scheduled Black-Out Period; or (iii) if
the Company has notified the Holders that in the good faith judgment of the
Company, it would be materially detrimental to the Company or its security
holders for such registration to be effected at such time, in which event the
Company shall have the right to defer such registration for a period of not
more than 60 days; provided that (A) such
right to delay a registration pursuant to clause (iii) shall be exercised
by the Company only if the Company has generally exercised (or is concurrently
exercising) similar black-out rights against holders of similar securities that
have registration rights, if any, and (B) any rights to delay 


 


15

















 


registration pursuant to
clauses (ii) or (iii) shall be subject to the Suspension Limit described
in Section 4.4.


 


(d)                                 If the Company
shall determine to register any of its securities either (x) for its own
account, (y) for the account of the Holders listed in Section 4.1(b) pursuant
to the terms thereof, or (z) for the account of Other Stockholders (other
than (A) a registration relating solely to employee benefit plans, (B) a
registration relating solely to a Rule 145 transaction under the
Securities Act or (C) a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a Registration Statement),
the Company will, subject to the conditions set forth in this Section 4.1(d):


 


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


 


(ii)                                  subject to Section 4.1(f) below
and any transfer restrictions any Holder may be a party to, include in such
registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made by the
Holders.  Such written request may
specify all or a part of the Holders’ Registrable Securities and shall be
received by the Company within ten (10) days after written notice from the
Company is given under Section 4.1(d)(i) above.


 


(e)                                  If any Initiating
Holder(s) intends to distribute Registrable Securities pursuant to Section 4.1(b) by
means of an underwriting, it shall so advise the Company.  In the case of such an underwritten offering,
the price, underwriting discount and other financial terms for the Registrable
Securities shall be determined by the Initiating Holder(s).  If Other Stockholders or Holders, to the
extent they have any registration rights under Section 4.1(d),
request inclusion of their securities or Registrable Securities, respectively,
in the underwriting, the Initiating Holder(s) shall offer to include such
securities or Registrable Securities of such Other Stockholders or Holders,
respectively, in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Section 4.1(e).  The Holders whose Registrable Securities are
to be included in such registration and the Company shall (together with all
Other Stockholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter or underwriters selected for such underwriting by the
Initiating Holder(s) subject to approval by the Company not to be
unreasonably withheld (which underwriters may also include a non-bookrunning
co-manager selected by the Company subject to approval by the Initiating
Holder(s)); provided, however, that such underwriting agreement shall not
provide for indemnification or contribution obligations on the part of any
Holder greater than the obligations of the Holders under Sections 4.7(b) and
4.8.  Notwithstanding any other
provision of this Section 4.1(e), if the managing underwriter or
underwriters advises the Holders in writing that marketing factors require a
limitation on the number of securities to be underwritten, some or all of the
securities of the Company held by the Other Stockholders shall be excluded from
such registration to the extent so required by such limitation.  If, after the exclusion of such securities
held by the Other Stockholders, further reductions are still required due to
the marketing 


 


16

















 


limitation, the number of
Registrable Securities included in the registration by each Holder (including
the Initiating Holder(s)) shall be reduced on a pro rata basis (based on the
number of securities held by such Holders), by such minimum number of
securities as is necessary to comply with such request.  No Registrable Securities or any other
securities excluded from the underwriting by reason of the underwriter’s
marketing limitation shall be included in such registration.  If any Holder or Other Stockholder who has
requested inclusion in such registration as provided above disapproves of the
terms of the underwriting, such Person may elect to withdraw therefrom by
providing written notice to the Company, the underwriter and the Initiating
Holder(s).  The securities so withdrawn
shall also be withdrawn from registration. 
If the underwriter has not limited the number of Registrable Securities
or other securities to be underwritten, the Company and executive officers and
directors of the Company (whether or not such Persons have registration rights
pursuant to Section 4.1(d) hereof) may include its or their
securities for its or their own account in such registration if the managing
underwriter or underwriters and the Company so agree and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.  The Company shall not be
obligated to undertake more than (i) one
underwritten offering requested by any of the Brookfield Investors pursuant to Sections
4.1(b) and 4.1(e) in any 12-month period, (ii) one
underwritten offering requested by The Fairholme Fund pursuant to Section 4.1(b) and
4.1(e) in any 12-month period, and (iii) one underwritten
offering requested by any of the Pershing Investors pursuant to Section 4.1(b) and
4.1(e) in any 12-month period.  The Holders shall reasonably cooperate in
connection with requests for underwritten offerings pursuant to this Section 4.1(e) to
cause the total number of days that the Company shall be subject to lock-ups in
connection with any such underwritten offerings not to exceed 120 days in any
365-day period.


 


(f)                                    If the
registration of which the Company gives notice pursuant to Section 4.1(d) is
for a registered public offering involving an underwriting, the Company shall
so advise each of the Holders as a part of the written notice given pursuant to
Section 4.1(d) above. 
In such event, the right of each of the Holders to registration pursuant
to Section 4.1(d) shall be conditioned upon such Holders’
participation in such underwriting and the inclusion of such Holders’
Registrable Securities in the underwriting to the extent provided herein.  The Holders whose Registrable Securities are
to be included in such registration shall (together with the Company and the
Other Stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter or underwriters selected for underwriting by the Company (other
than a registration pursuant to Section 4.1(b) and notified by
the Company pursuant to Section 4.1(d)(y), in which case Section 4.1(e) shall
apply with respect to the selection of underwriters); provided, however, that
such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of any Holder greater than the obligations
of the Holders under Sections 4.7(b) and 4.8.  Notwithstanding any other provision of Section 4.1(d),
if any registration in respect of which any Holder is exercising its rights
under Section 4.1(d) involves an underwritten public offering
(other than a registration pursuant to Section 4.1(b), in which
case the provisions with respect to priority of inclusion in such registration
set forth in Section 4.1(e) shall apply) and the managing
underwriter or underwriters advises the Company that in its view marketing
factors require a limitation on the number of securities to be underwritten,
then there shall be included in such underwritten offering the number or dollar
amount of securities of the Company that in the opinion of the managing
underwriter or underwriters can be sold without adversely affecting 


 


17





















 


such offering, and such
number of securities of the Company shall be allocated for inclusion as
follows: (1) first, all securities of the Company being sold by the
Company for its own account; (2) second, all Registrable Securities
requested to be included by the Holders and, solely with respect to an offering
of Warrants following the 180th day after the effectiveness of a
plan of reorganization of the Company, securities of the Company being sold by
any Person (other than a Holder) with similar piggyback registration rights,
pro rata, based on the number of securities beneficially owned by each such
Holder and Person; and (3) third, among any other holders of securities of
the Company requesting such registration, pro rata, based on the number of
securities beneficially owned by each such holder.  If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such
underwriting, he, she or it may elect to withdraw therefrom by providing
written notice to the Company and the underwriter.  Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.


 


(g)                                 In the event
any Holder requests or elects to participate in a registration pursuant to this
Section 4.1 in connection with a distribution of Registrable
Securities to its partners or members, the registration shall provide for the
resale by such partners or members, if requested by such Holder.


 


(h)                                 The Company agrees to use reasonable best efforts to promptly respond to
any request by any member of the Fairholme Purchaser Group to sell Registrable
Securities under a Registration Statement or Prospectus during what would
otherwise be a Scheduled Black-Out Period, provided that such consent can be
given in compliance with applicable securities laws. In addition the Company
agrees to use its reasonable best efforts to issue earnings releases as promptly
as practicable following the end of quarterly reporting periods and to
otherwise minimize the duration of Scheduled Black-Out Periods.


 


4.2                                 Expenses of
Registration.  Except as
specifically provided herein, all Registration Expenses incurred in connection
with any registration, qualification or compliance hereunder shall be borne by
the Company. All Selling Expenses incurred in connection with any registrations
hereunder shall be borne by the holders of the securities so registered pro
rata on the basis of the aggregate offering or sale price of the securities so
registered.


 


4.3                                 Obligations of
the Company.  In connection with the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably practicable and in accordance with the requested methods of distribution thereof, subject to
the provisions of this Article 4:


 


(a)                                  Prepare and
file with the SEC a prospectus supplement with respect to a proposed offering
of Registrable Securities pursuant to an effective Registration Statement and,
subject to Sections 4.1(b), 4.1(c) and 4.4,
use reasonable best efforts to keep
such Registration Statement effective or such prospectus supplement current,
until the termination of the period contemplated in Section 4.5.


 


(b)                                 Prepare and file
with the SEC such amendments and supplements to the applicable Registration
Statement and the Prospectus or prospectus supplement used in connection with
such Registration Statement as may be necessary to comply with 


 


18

















 


the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement for the period
set forth in paragraph (a) above.


 


(c)                                  Furnish to the
Holders and any underwriters such number of copies of the applicable
Registration Statement and each such amendment and supplement thereto
(including in each case all exhibits) and of a Prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned or to be distributed
by them.


 


(d)                                 Use its
reasonable best efforts to register and
qualify the securities covered by such Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders or any managing underwriter(s), to keep such
registration or qualification in effect for so long as such Registration
Statement remains in effect, and to take any other action which may be
reasonably necessary to enable such seller to consummate the disposition in
such jurisdictions of the securities owned by such Holder; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.


 


(e)                                  Notify each
Holder of Registrable Securities at any time when a Prospectus relating thereto
is required to be delivered under the Securities Act or the happening of any
event as a result of which the applicable Prospectus, as then in effect, would
include an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.


 


(f)                                    Give written
notice to the Holders of Registrable Securities covered by a Registration
Statement:


 


(i)                                     when any
Registration Statement filed pursuant to Section 4.1 or any
amendment thereto has been filed with the SEC and when such Registration
Statement or any post-effective amendment thereto has become effective;


 


(ii)                                  of any request
by the SEC for amendments or supplements to any Registration Statement or the
Prospectus included therein or for additional information;


 


(iii)                               of the issuance
by the SEC of any stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that purpose;


 


(iv)                              of the receipt
by the Company or its legal counsel of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and


 


19

















 


(v)                                 of the
happening of any event that requires the Company to make changes in any
effective Registration Statement or the Prospectus in order to make the
statements therein not misleading (which notice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made).


 


(g)                                 Use its
reasonable best efforts to prevent the
issuance or obtain the withdrawal of any order suspending the effectiveness of
any Registration Statement referred to in Section 4.3(f)(iii) at
the earliest practicable time.


 


(h)                                 Upon the
occurrence of any event contemplated by Section 4.3(f)(v), as soon
as is reasonably practicable prepare a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to the Holders and any
underwriters, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If the Company notifies the Holders in accordance with Section 4.3(f)(v) to
suspend the use of the Prospectus until the requisite changes to the Prospectus
have been made, then the Holders and any underwriters shall suspend use of such
Prospectus and use their commercially reasonable efforts to return to the
Company all copies of such Prospectus (at the Company’s expense) other than
permanently filed copies then in such Holder’s or underwriter’s possession.


 


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


 


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


 


(k)                                  With respect to
underwritten public offerings permitted by this Agreement, enter into an
underwriting agreement in form, scope and substance as is customarily entered
into for similar underwritten secondary offerings of equity securities and take
all such other actions reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith or by the managing
underwriter(s), if any, to expedite or facilitate the underwritten disposition
of such Registrable Securities, and in connection therewith as customary for
any similar underwritten secondary offering, (i) make such representations
and warranties to the Holders that are selling stockholders and the managing
underwriter(s), if any, with respect to the business of the Company and its
subsidiaries, and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case,
in form, substance and scope as are customarily made by the issuer in similar
secondary underwritten offerings of equity securities, and confirm 


 


20

















 


the
same if and when requested, (ii) use its reasonable best efforts to furnish underwriters opinions of counsel to the Company, addressed
to the managing underwriter(s), if any, covering the matters customarily
covered in the opinions requested in similar secondary underwritten offerings
of equity securities, (iii) use its reasonable best
efforts to obtain “cold comfort” letters from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any business acquired by the Company for which
financial statements and financial data are included in the Registration
Statement) who have certified the financial statements included in such
Registration Statement, addressed to each of the managing underwriter(s), if
any, such letters to be in customary form and covering matters of the type
customarily covered in “cold comfort” letters in connection with similar
secondary underwritten offerings of equity securities, (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures customary in similar secondary underwritten offerings
of equity securities by similar companies, and (v) deliver such documents
and certificates as may be reasonably requested by the Holders of a majority of
the Registrable Securities being sold in connection therewith, their counsel
and the managing underwriter(s), if any, to evidence the continued validity of
the representations and warranties made pursuant to clause (i) above and
to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.


 


(l)                                     Make available
for inspection by a representative of Holders that are selling at least five
percent (5%) of the Registrable Securities issued on the date hereof, the
managing underwriter(s), if any, and any attorneys or accountants retained by
such Holders or managing underwriter(s), at the offices where normally kept,
during reasonable business hours, financial and other records and pertinent
corporate documents of the Company, and cause the officers, directors and
employees of the Company to supply all information in each case reasonably
requested by any such representative, managing underwriter(s), attorney or
accountant in connection with such Registration Statement; provided that this
clause (l) shall only be applicable to a representative of such Holders
that are selling stockholders and any attorneys or accountants retained by such
Holders if such Holder is named in the applicable prospectus supplement as a
Person who may be deemed to be an underwriter with respect to an offering and sale of Registrable Securities.


 


4.4                                 Suspension of
Sales.  Notwithstanding anything to
the contrary contained herein (but subject to the Suspension Limit described
below), (i) subject to Section 4.1(h), during any Scheduled
Black-Out Period or (ii) upon receipt of written notice from the Company
that a Registration Statement or Prospectus contains or may contain an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that circumstances exist that make inadvisable use of such Registration
Statement or Prospectus, the Holder of Registrable Securities shall forthwith
discontinue the marketing of or disposition of Registrable Securities until termination
of such Scheduled Black-Out Period, until the Holder has received copies of a
supplemented or amended Prospectus, or until such Holder is advised in writing
by the Company that the use of the Prospectus may be resumed, and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such 


 


21

















 


Holder’s possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. The total number of days that any such suspensions and any
deferrals or delays in registration pursuant to Section 4.1(c) in
the aggregate may be in effect in any 180 day period shall not exceed 60 days
(the “Suspension Limit”).


 


4.5                                 Termination of
Registration Rights.  A Holder’s
Registration Rights as to any securities held by such Holder (and its
affiliates, partners, members and former members) shall not be available unless
such securities are Registrable Securities.


 


4.6                                 Furnishing
Information.  It shall be
a condition precedent to the obligations of the Company to take any action
pursuant to Section 4.3 that the selling Holders and the
underwriters, if any, shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to effect the registered
offering of their Registrable Securities.


 


4.7                                 Indemnification.  (a)  In connection with each
registration pursuant to Article 4, the Company agrees to indemnify
and hold harmless (1) each selling Holder and each of its officers,
directors, limited or general partners and members, (2) each member,
limited or general partner of each such member, limited or general partner, (3) each
of their respective Affiliates, officers, directors, shareholders, employees,
advisors and agents, (4) each underwriter or agent participating in such
offering, and (5) each Person, if any, who controls any selling Holder or
any such underwriter or agent within the meaning of Section 15 of the
Securities Act as follows:


 


(i)                                     against any and
all loss, liability, claim, damage and expense (“Loss”) whatsoever, as
incurred, arising out of an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of an untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus  or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and


 


(ii)                                  against any and
all Loss whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided, however, that,
with respect to any selling Holder or any underwriter or agent, this indemnity
does not apply to any Loss to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such selling
Holder or underwriter or agent, respectively, expressly for use in the
Registration Statement, or any preliminary prospectus or the Prospectus.


 


(b)                                 Each selling
Holder agrees severally, and not jointly, to indemnify and hold harmless the
Company, its directors, each of its officers who signed a Registration
Statement, each underwriter or agent participating in such offering and the
other selling Holders, 


 


22

















 


and each Person, if any, who
controls the Company, any such underwriter or agent and any other selling
Holder within the meaning of Section 15 of the Securities Act, against any
and all Losses described in the indemnity contained in Section 4.7(a),
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement, or
any preliminary prospectus or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by such selling Holder
expressly for use in the Registration Statement, or any preliminary prospectus
or the Prospectus.


 


(c)                                  The obligations
of the Company under Section 4.7(a) and of the selling Holders
under Section 4.7(b) to indemnify any underwriter or agent who
participates in an offering (or any Person, if any, controlling such
underwriter or agent within the meaning of Section 15 of the Securities
Act) shall be conditioned upon the underwriting or agency agreement with such
underwriter or agent containing an agreement by such underwriter or agent to
indemnify and hold harmless (1) each selling Holder and each of its
officers, directors, limited or general partners and members, (2) each
member, limited or general partner of each such member, limited or general
partner, (3) each of their respective Affiliates, officers, directors,
shareholders, employees, advisors and agents, (4) the Company, its
directors, and each of its officers who signed a Registration Statement, and (5) each
Person, if any, who controls the Company or any such selling Holder within the
meaning of Section 15 of the Securities Act, against any and all Losses
described in the indemnity contained in Section 4.7(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement, or any
preliminary prospectus or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by such underwriter or agent
expressly for use in the Registration Statement or any preliminary prospectus
or the Prospectus.


 


(d)                                 Each
indemnified party shall give prompt notice to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve the
indemnifying party from any liability it may have under this Agreement, except
to the extent that the indemnifying party is prejudiced thereby. If it so
elects, after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it, provided that the indemnified
party shall be entitled to participate in (but not control) the defense of such
action with counsel chosen by it, the reasonable fees and expenses of which
shall be paid by the indemnifying party if there would be a conflict if one
counsel were to represent both the indemnified and the indemnifying party, and
by the indemnified party in all other circumstances. In no event shall the
indemnifying party or parties be liable for a settlement of an action with
respect to which they have assumed the defense if such settlement is effected
without the written consent of the indemnifying party (not to be unreasonably
withheld or delayed), or for the fees and expenses of more than one counsel for
(i) the Company, its officer, directors and controlling Persons as a
group, (ii) the selling Holders and their controlling Persons as a group
and (iii) the underwriters or agents and their controlling Persons as a
group, in each case, in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.


 


23
















 


4.8                                 Contribution.  If the indemnification provided for in this Article 4
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any Loss, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such aggregate
Losses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions (or alleged statements or
omissions) which resulted in such Losses, as well as any other relevant
equitable considerations.  The relative
fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue (or alleged
untrue) statement of a material fact or the omission (or alleged omission) to
state a material fact relates to information supplied by the indemnifying party
or by the indemnified party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission; provided, however, that the obligations of each of the Holders
hereunder shall be several and not joint and shall be limited to an amount
equal to the net proceeds such Holder receives in such registration and,
provided, further, that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.  For purposes of this Section 4.8,
each Person, if any, who controls an underwriter or agent within the meaning of
Section 15 of the Securities Act shall have the same rights to
contribution as such underwriter or agent and each director of the Company,
each officer of the Company who signed a Registration Statement, and each
Person, if any, who controls the Company or a selling Holder within the meaning
of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or such selling Holder, as the case may be.


 


4.9                                 Representations,
Warranties and Indemnities to Survive.  The indemnity and contribution agreements
contained in this Article 4 and the representations and warranties
of the Company referred to in Section 4.3(k) shall remain
operative and in full force and effect regardless of (i) any termination
of any underwriting or agency agreement, (ii) any investigation made by or
on behalf of the selling Holders, the Company or any underwriter or agent or
controlling Person or (iii) the consummation of the sale or successive
resales of the Registrable Securities.


 


4.10                           Lock-Up
Agreements.  The Company
agrees that, if requested by the managing underwriter in any underwritten
public offering permitted by this Agreement, it will not, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock (subject to customary exceptions), other than any
such sale or distribution of Common Stock upon exercise of the Company’s
Warrants, in the case of an underwritten offering for a period of 60 days from
the effective date of the Registration Statement pertaining to such Common
Stock; provided, however, that any such lock-up agreement shall not prohibit
the Company from directly or indirectly (i) selling, offering to sell,
granting any option for the sale of, or otherwise disposing of any Qualifying
Employee Stock (or otherwise maintaining its employee benefits plans in the
ordinary course of business) or (ii) issuing Common Stock or securities
convertible into or exchangeable for Common Stock upon exercise or conversion
of any warrant (including any other Warrant), option, right or convertible or
exchangeable security issued in connection with the plan of
reorganization.  The total number of days
that any such lock-up agreement may 


 


24

















 


be in effect in any 365-day
period shall not exceed 120 days.  The
lock-up agreements set forth in this Section 4.10 shall be subject
to customary exceptions that may be contained in an underwriting agreement if
any such registration involves a similar underwritten offering.


 


4.11                           Rule 144
Reporting.  With a view
to making available to the Holders the benefits of certain rules and
regulations of the SEC which may permit the sale of the Registrable Securities
to the public without registration, the Company agrees, so long as it is
subject to the periodic reporting requirements of the Securities Act, to use
its reasonable best efforts to:


 


(a)                                  make and keep
public information available, as those terms are understood and defined in Rule 144(c)(1) or
any similar or analogous rule promulgated under the Securities Act, at all
times after the effective date of this Agreement;


 


(b)                                 file with the
SEC, in a timely manner, all reports and other documents required of the
Company under the Exchange Act; and


 


(c)                                  so long as the
Holders own any Registrable Securities, furnish to such Holders forthwith upon
request: a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 under the Securities Act, and of the
Exchange Act; and such other reports and documents as any Initial Investor or
Holder may reasonably request in availing itself of any rule or regulation
of the SEC allowing it to sell any such securities without registration.


 


4.12                           Obtaining
Exchange Listing.  The Company
will file a listing application for listing on the exchange on which the then
outstanding Common Stock is listed with respect to the Underlying Common Stock
as soon as practicable after the date hereof. 
The Company shall use reasonable best efforts to list the Warrants, and
maintain such listing, on such exchange or, if not possible, another U.S.
national securities exchange, in connection with any proposed underwritten
distribution of the Warrants that meets the applicable listing criteria.  A copy of any opinion of counsel accompanying
a listing application by the Company with respect to the Underlying Common
Stock or Warrants shall be furnished to the Warrant Agent, together with a
letter to the effect that the Warrant Agent may rely on the statements made in
such opinion.


 


5.                                      ADJUSTMENTS AND OTHER
RIGHTS.


 


5.1                                 Stock Dividend;
Subdivision or Combination of Common Stock.  If the Company at any time issues to holders
of the Common Stock a dividend payable solely in, or other distribution solely
of, Common Stock (a “Stock Dividend”), the Exercise Price in effect
immediately prior to such Stock Dividend shall be proportionately reduced and
the number of shares of Common Stock obtainable upon exercise of each Warrant
shall be proportionately increased.  If
the Company at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) the outstanding Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced 
(but not below the par value per share of Common Stock) and the number
of shares of Common Stock obtainable upon exercise of each Warrant shall be
proportionately increased.  If the
Company at any time combines (by reverse stock split or otherwise) the
outstanding Common Stock into a smaller number of shares, the Exercise Price in
effect immediately prior to such 


 


25

















 


combination shall be
proportionately increased and the number of shares of Common Stock obtainable
upon exercise of each Warrant shall be proportionately decreased.


 


5.2                                 Other Dividends
and Distributions.  If at any
time or from time to time prior to the exercise of any Warrant the Company
shall fix a record date for the making of a dividend or other distribution
(other than as contemplated by Section 5.5), other than a Stock
Dividend covered by Section 5.1 or a distribution of rights or
warrants covered by Section 5.3, to the holders of its Common Stock
(collectively, a “Distribution”) of:


 


(A)                              any evidences
of its indebtedness, any shares of its capital stock or any other securities or
property of any nature whatsoever (including cash); or


 


(B)                                any options,
warrants or other rights to subscribe for or purchase any of the following: any
evidences of its indebtedness, any shares of its capital stock or any other
securities or property of any nature whatsoever;


 


then,
in each such case, the Exercise Price in effect immediately prior to such
record date shall be reduced immediately thereafter to the price determined by
multiplying such Exercise Price by the quotient of (x) the Fair Market
Value of the Common Stock on the last trading day immediately preceding the
first date on which the Common Stock trades regular way on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading without the right to receive such Distribution, minus the amount of
cash and/or the Fair Market Value of the securities, evidences of indebtedness,
assets, rights or warrants to be so distributed in respect of one share of
Common Stock divided by (y) the Fair Market Value of the Common Stock on
the last trading day immediately preceding the first date on which the Common
Stock trades regular way on the principal national securities exchange on which
the Common Stock is listed or admitted to trading without the right to receive
such Distribution; such adjustment shall be made successively whenever such a
record date is fixed. In such event, the number of shares of Common Stock
issuable upon the exercise of each Warrant as in effect immediately prior to
such record date shall be increased immediately thereafter to the amount
determined by multiplying such number by the quotient of (x) the Exercise
Price in effect immediately prior to the adjustment contemplated by the
immediately preceding sentence divided by (y) the new Exercise Price
determined in accordance with the immediately preceding sentence.  In the event that such Distribution is not so
made, the Exercise Price and the number of shares of Common Stock issuable upon
exercise of each Warrant then in effect shall be readjusted, effective as of
the date when the Board determines not to distribute such shares, evidences of
indebtedness, assets, rights, cash or warrants, as the case may be, to the
Exercise Price that would then be in effect and the number of Shares that would
then be issuable upon exercise of this Warrant if such record date had not been
fixed.


 


5.3                                 Rights
Offerings.  If at any
time the Company shall distribute rights or warrants to all or substantially
all holders of its Common Stock entitling them, for a period of not more than
45 days, to subscribe for or purchase shares of Common Stock at a price per
share less than the Fair Market Value of the Common Stock on the last trading
day preceding the date on which the Board declares such distribution of rights or warrants, the Exercise Price in effect
immediately prior to the close of business on the record date for such
distribution shall be reduced immediately thereafter to the price determined by
multiplying such Exercise Price by the 


 


26

















 


quotient of (x) the
number of shares of Common Stock outstanding at the close of business on such
record date plus the number of shares of Common Stock which the aggregate of
the offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such Fair Market Value divided by (y) the
number of shares of Common Stock outstanding at the close of business on such
record date plus the number of shares of Common Stock so offered for
subscription or purchase.  In such event,
the number of shares of Common Stock issuable upon the exercise of each Warrant
as in effect immediately prior to the close of business on such record date
shall be increased immediately thereafter to the amount determined by
multiplying such number by the quotient of (x) the Exercise Price in
effect immediately prior to the adjustment contemplated by the immediately
preceding sentence divided by (y) the new Exercise Price determined in
accordance with the immediately preceding sentence.  In case any rights or warrants referred to in
this Section 5.3 in respect of which an adjustment shall have been
made shall expire unexercised and any shares that would have been underlying such rights or warrants
shall not have been allocated pursuant to any backstop commitment or any
similar arrangement, the Exercise Price and the number of shares of
Common Stock issuable upon exercise of each Warrant then in effect shall be
readjusted at the time of such expiration to the Exercise Price that would then
be in effect and the number of Shares that would then be issuable upon exercise
of each Warrant if no adjustment had been made on account of such expired
rights or warrants.


 


5.4                                 Issuer Tender
or Exchange Offers.  If the
Company or any subsidiary of the Company shall consummate a tender or exchange
offer for all or any portion of the Common Stock for a consideration per share
with a Fair Market Value greater than the Fair Market Value of the Common Stock
on the date such tender or exchange offer is first publicly announced (the “Announcement
Date”), the Exercise Price in effect immediately prior to the expiration
date for such tender or exchange offer shall be reduced immediately thereafter
to the price determined by multiplying such Exercise Price by the quotient of (x) the
Fair Market Value of the Common Stock on the Announcement Date minus the
Premium Per Post-Tender Share divided by (y) the Fair Market Value of the
Common Stock on the Announcement Date. 
In such event, the number of shares of Common Stock issuable upon the
exercise of each Warrant as in effect immediately prior to such expiration date
shall be increased immediately thereafter to the amount determined by
multiplying such number by the quotient of (x) the Exercise Price in
effect immediately prior to the adjustment contemplated by the immediately
preceding sentence divided by (y) the new Exercise Price determined in
accordance with the immediately preceding sentence.  As used in this Section 5.4 with
respect to any tender or exchange offer, “Premium Per Post-Tender Share”
means the quotient of (x) the amount by which the aggregate Fair Market
Value of the consideration paid in such tender or exchange offer exceeds the
aggregate Fair Market Value on the Announcement Date of the shares of Common
Stock purchased therein divided by (y) the number of shares of Common
Stock outstanding at the close of business on the expiration date for such
tender or exchange offer (after giving pro forma effect to the purchase of
shares being purchased in the tender or exchange offer).


 


5.5                                 Reorganization,
Reclassification, Consolidation, Merger or Sale.  Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all of
the Company’s assets or other transaction, which in each case is effected in
such a way that the shares of Common Stock are converted into the right to
receive (either directly or upon subsequent liquidation) stock, securities,
other equity interests or assets (including cash) with 


 


27

















 


respect to or in exchange
for shares of Common Stock is referred to herein as “Organic Change.”  Prior to the consummation of any Organic
Change, the Company shall make appropriate provision to ensure that each of the
Holders shall thereafter have the right to acquire and receive, in lieu of or
in addition to (as the case may be) the Common Stock immediately theretofore
acquirable and receivable upon the exercise of such Holder’s Warrants, (x) in
the case of a Mixed Consideration Merger, the Public Stock issued in such Mixed
Consideration Merger and (y) in the case of any other Organic Change, such
stock, securities, other equity interests or assets, in each case as may be
issued or payable in connection with the Organic Change with respect to or in
exchange for the number of shares of Common Stock immediately theretofore
acquirable and receivable upon exercise of such Holder’s Warrants, for an
aggregate Exercise Price per Warrant equal to (i) in the case of a Mixed
Consideration Merger, the aggregate Exercise Price per Warrant as in effect
immediately prior to such Mixed Consideration Merger times the Stock
Consideration Ratio and (ii) in the case of any other Organic Change, the
aggregate Exercise Price per Warrant as in effect immediately prior to such
Organic Change.  In any such case, the
Company shall make appropriate provision to insure that all of the provisions
of the Warrants shall thereafter be applicable to such stock, securities, other
equity interests or assets.  The Company
shall not effect any such consolidation, merger or sale of all or substantially
all of the Company’s assets where the Warrants will be assumed by the successor
entity, unless prior to the consummation thereof, the successor entity (if
other than the Company) resulting from consolidation or merger or the entity
purchasing such assets assumes by written instrument the obligation to deliver
to each such Holder upon exercise of any Warrant, such stock, securities,
equity interests or assets (including cash) as, in accordance with Article 5,
such Holder may be entitled to acquire. 
This Section 5.5 shall not apply to any Warrants or Common
Stock redeemed or sold in connection with any Organic Change pursuant to Section 6.1,
Section 6.2(b), Section 6.3(a)(i) and Section 6.3(b),
provided that, for the avoidance of doubt, the adjustments set forth in this Section 5.5
shall be applicable to any Warrants that remain outstanding pursuant to this
Agreement in connection with a Public Stock Merger or Mixed Consideration
Merger (including any adjustment applicable in connection with such Public
Stock Merger or Mixed Consideration Merger).


 


5.6                                 Other
Adjustments.  The Board
shall make appropriate adjustments to the amount of cash or number of shares of
Common Stock, as the case may be, due upon exercise of the Warrants, as may be
necessary or appropriate to effectuate the intent of this Article 5
and to avoid unjust or inequitable results as determined in its reasonable good
faith judgment, in each case to account for any adjustment to the Exercise
Price and the number of shares purchasable on exercise of Warrants for the
relevant Warrant Certificate that becomes effective, or any event requiring an
adjustment to the Exercise Price and the number of shares purchasable on
exercise of Warrants for the relevant Warrant Certificate where the record date
or effective date (in the case of a subdivision or combination of the Common
Stock) of the event occurs, during the period beginning on, and including, the
Exercise Date and ending on, and including, the related Settlement Date.


 


5.7                                 Notice of
Adjustment.  Whenever
the number of shares of Common Stock issuable upon the exercise of each Warrant
is adjusted, as herein provided, the Company shall cause the Warrant Agent
promptly to mail by first class mail, postage prepaid, to each Holder notice of
such adjustment or adjustments and shall deliver to the Warrant Agent a
certificate of a firm of independent public accountants selected by the Board
(who may be the regular 


 


28

















 


accountants employed by the
Company) setting forth the number of shares of Common Stock issuable upon the
exercise of each Warrant after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made. The Warrant Agent shall be entitled to rely on
such certificate and shall be under no duty or responsibility with respect to
any such certificate, except to exhibit the same from time to time, to any
Holder desiring an inspection thereof during reasonable business hours. The
Warrant Agent shall not at any time be under any duty or responsibility to any
Holders to determine whether any facts exist that may require any adjustment of
the number of shares of Common Stock or other stock or property issuable on
exercise of the Warrants, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed in making such
adjustment or the validity or value (or the kind or amount) of any shares of
Common Stock or other stock or property which may be issuable on exercise of
the Warrants. The Warrant Agent shall not be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or security instruments or other securities or properties upon the
exercise of any Warrant.


 


6.                                      CHANGE OF CONTROL.


 


6.1                                 Redemption in
Connection with a Change of Control Event.  Upon the occurrence of a Change of Control
Event (other than a Public Stock Merger or Mixed Consideration Merger), at the
election of each Holder in its sole discretion by written notice to the Company
or the successor to the Company on or prior to the Exercise Date, the Company
shall pay to such Holder of outstanding Warrants as of the date of such Change
of Control Event, an amount in immediately available funds equal to the Cash
Redemption Value for such Warrants, not later than the date which is ten (10) Business
Days after such Change of Control Event and the Warrants shall thereafter be
extinguished. For purposes of this Section 6.1, the Exercise Date
shall mean (a) if the Company entered into a definitive agreement with
respect to a Change of Control Event and has provided to the Holders notice of
the date on which the Change in Control Event will become effective at least
twenty (20) Business Days prior to the effectiveness of such event, the tenth
(10th) Business Day prior to such event and (b) otherwise, the fifth (5th)
Business Day following the effectiveness of the Change of Control Event.  The “Cash Redemption Value” for any
Warrant will equal the fair value of the Warrant as of the date of such Change
of Control Event as determined by an Independent Financial Expert, by employing
a valuation based on a computation of the option value of each Warrant using the calculation methods and making the assumptions set forth in Exhibit C.  The Cash Redemption Value of the Warrants
shall be due and payable within ten (10) Business Days after the date of
the applicable Change of Control Event.  If a Holder of Warrants does not elect to
receive the Cash Redemption Value for such Holder’s Warrants as provided by
this Section 6.1, such Warrants will remain outstanding as adjusted
pursuant to the provisions of Article 5 hereof.


 


6.2                                 Public Stock
Merger.  (a)  In connection with a
Public Stock Merger, the Company may by written notice to the Holders not less
than ten (10) Business Days prior to the effective date of such Public
Stock Merger elect to have all the unexercised Warrants remain outstanding
after the Public Stock Merger, in which case the Warrants will remain
outstanding as adjusted pursuant to Section 5.5 and the other
provisions of Article 5 hereof.


 


29

















 


(b)                                 In the case of
any Public Stock Merger with respect to which the Company does not make a timely
election as contemplated by Section 6.2(a) above, the Company
shall pay within five (5) Business Days after the effective date of such
Public Stock Merger, to the Warrant Agent on behalf of each Holder of
outstanding Warrants as of the effective date of such Public Stock Merger, an
amount in cash in immediately available funds equal to the Cash Redemption
Value for such Warrants determined in accordance with Section 6.1
and the Warrants shall be terminated and extinguished.


 


6.3                                 Mixed
Consideration Merger.  (a) 
In connection with a Mixed Consideration Merger, the Company may by written
notice to the Holders not less than ten (10) Business Days prior to the
effective date of such Mixed Consideration Merger elect the following treatment
with respect to each outstanding Warrant: (i) pay to the Holder of such
Warrant as of the date of such Mixed Consideration Merger the product of the
Cash Consideration Ratio multiplied by the Cash Redemption Value for such
Warrant, which amount shall be paid in immediately available funds, not later
than the date which is ten (10) Business Days after such Mixed
Consideration Merger and (ii) the Warrant shall remain outstanding after
the Mixed Consideration Merger, as further adjusted pursuant to Section 5.5
and the other provisions of Article 5.  The portion of the Cash Redemption Value of
the Warrants payable pursuant to clause (i) of this Section 6.3(a) shall
be due and payable not later than the tenth (10th) Business Day after the date
of the Mixed Consideration Merger.


 


(b)                                 In the case of
any Mixed Consideration Merger with respect to which the Company does not make
a timely election as contemplated by Section 6.3(a) above, the
Company shall pay, within ten (10) Business Days after the effective date
of such Mixed Consideration Merger, to the Warrant Agent on behalf of each
Holder of outstanding Warrants as of the effective date of such Mixed
Consideration Merger, an amount in cash in immediately available funds equal to
the Cash Redemption Value for such Warrants determined in accordance with Section 6.1
and the Warrants shall be terminated and extinguished.


 


7.                                      WARRANT TRANSFER BOOKS.


 


The
Warrant Certificates shall be issued in registered form only. The Company shall
cause to be kept at the office of the Warrant Agent a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates as herein provided.


 


At
the option of the Holder, Warrant Certificates may be exchanged at such office,
and upon payment of the charges hereinafter provided.  Whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute, and the Warrant Agent
shall countersign and deliver, the Warrant Certificates that the Holder making
the exchange is entitled to receive.


 


All
Warrant Certificates issued upon any registration of transfer or exchange of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement,
as the Warrant Certificates surrendered for such registration of transfer or
exchange.


 


30

















 


Every
Warrant Certificate surrendered for registration of transfer or exchange shall
(if so required by the Company or the Warrant Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in the form attached hereto as Exhibit B
or otherwise satisfactory to the Warrant Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.


 


No
service charge shall be made to a Holder for any registration of transfer or
exchange of Warrant Certificates. The Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Warrant
Certificates.


 


Subject
to compliance with any restrictions on transfer under applicable law and this
Warrant Agreement, any Warrant Certificate when duly endorsed in blank shall be
deemed negotiable and when a Warrant Certificate shall have been so endorsed,
the Holder thereof shall be treated by the Company, the Warrant Agent and all
other Persons dealing therewith as the absolute owner thereof for any purpose
and as the Person entitled to exercise the rights represented thereby, or to
the transfer thereof on the register of the Company maintained by the Warrant
Agent.  No such transfer shall be registered
until the Warrant Agent has been supplied with the aforementioned instruments
of transfer and any other such documentation as the Warrant Agent may
reasonably require.


 


8.                                      WARRANT HOLDERS.


 


8.1                                 No Voting
Rights.  Prior to the exercise of
Warrants and full payment of the Exercise Price thereof, or in the event of Net Share Settlement, prior to the election of a
Holder for Net Share Settlement, in accordance with the
terms of this Agreement, no Holder of a Warrant Certificate, in respect of such
Warrants, shall be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to vote, to consent, to exercise any
preemptive right (except as otherwise agreed
in writing by the Company, including the subscription rights set forth in the
Investment Agreement), to receive any notice of meetings of stockholders
for the election of directors of the Company or any other matter or to receive
any notice of any proceedings of the Company.


 


8.2                                 Right of Action.  All rights of action in respect of this
Agreement are vested in the Holders of the Warrants, and any Holder of
Warrants, without the consent of the Warrant Agent or the Holder of any other
Warrant, may, on such Holder’s own behalf and for such Holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such Holder’s
right to exercise or exchange such Holder’s Warrants in the manner provided in
this Agreement or any other obligation of the Company under this Agreement.


 


9.                                      WARRANT AGENT


 


9.1                                 Nature of
Duties and Responsibilities Assumed.  The Company hereby appoints the Warrant Agent
to act as agent of the Company as set forth in this Agreement. The Warrant
Agent hereby accepts such appointment as agent of the Company and agrees to
perform that agency upon the terms and conditions herein set forth, by all of
which the Company and the 


 


31

















 


Holders, by their acceptance
thereof, shall be bound. The Warrant Agent shall not by countersigning Warrant
Certificates or by any other act hereunder be deemed to make any
representations as to validity or authorization of the Warrants or the Warrant
Certificates (except as to its countersignature thereon) or of any securities
or other property delivered upon exercise or tender of any Warrant, or as to
the accuracy of the computation of the Exercise Price or the number or kind or
amount of stock or other securities or other property deliverable upon exercise
of any Warrant, the independence of any Independent Financial Expert or the
correctness of the representations of the Company made in such certificates
that the Warrant Agent receives. The Warrant Agent shall not have any duty to
calculate or determine any adjustments with respect to the Exercise Price and
the Warrant Agent shall have no duty or responsibility in determining the
accuracy or correctness of such calculation. The Warrant Agent shall not (a) be
liable for any recital or statement of fact contained herein or in the Warrant
Certificates or for any action taken, suffered or omitted by it in good faith
on the belief that any Warrant Certificate or any other documents or any
signatures are genuine or properly authorized, (b) be responsible for any
failure on the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in the Warrant Certificates, or (c) be
liable for any act or omission in connection with this Agreement except for its
own negligence or willful misconduct. The Warrant Agent is hereby authorized to
accept instructions with respect to the performance of its duties hereunder
from the President, any Vice President or the Secretary of the Company and to
apply to any such officer for instructions (which instructions will be promptly
given in writing when requested) and the Warrant Agent shall not be liable and
shall be indemnified and held harmless for any action taken or suffered to be
taken by it in good faith in accordance with the instructions of any such
officer, but in its discretion the Warrant Agent may in lieu thereof accept
other evidence of such or may require such further or additional evidence as it
may deem reasonable.


 


The
Warrant Agent may execute and exercise any of the rights and powers hereby
vested in it or perform any duty hereunder either itself or by or through its
attorneys, agents or employees, provided reasonable care has been exercised in
the selection and in the continued employment of any such attorney, agent or
employee. The Warrant Agent shall not be under any obligation or duty to
institute, appear in or defend any action, suit or legal proceeding in respect
hereof, unless first indemnified to its satisfaction, but this provision shall
not affect the power of the Warrant Agent to take such action as the Warrant
Agent may consider proper, whether with or without such indemnity. The Warrant
Agent shall promptly notify the Company in writing of any claim made or action,
suit or proceeding instituted against it arising out of or in connection with
this Agreement.


 


The
Company will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent
in order to enable it to carry out or perform its duties under this Agreement.


 


The
Warrant Agent shall act solely as agent of the Company hereunder. The Warrant
Agent shall not be liable except for the failure to perform such duties as are
specifically set forth herein, and no implied covenants or obligations shall be
read into this Agreement against the Warrant Agent, whose duties and
obligations shall be determined solely by the express provisions hereof.
Notwithstanding anything in this Agreement to the contrary, Warrant Agent’s 


 


32

















 


aggregate
liability under this Agreement with respect to, arising from, or arising in
connection with this Agreement, or from all services provided or omitted to be
provided under this Agreement, whether in contract, or in tort, or otherwise,
is limited to, and shall not exceed, the amounts paid hereunder by the Company
to Warrant Agent as fees and charges, but not including reimbursable expenses.


 


9.2                                 Compensation
and Reimbursement.  The Company
agrees to pay to the Warrant Agent from time to time compensation for all
services rendered by it hereunder in accordance with Schedule B hereto
and as the Company and the Warrant Agent may agree from time to time, and to
reimburse the Warrant Agent for reasonable expenses and disbursements actually
incurred in connection with the execution and administration of this Agreement
(including the reasonable compensation and the expenses of its counsel), and
further agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance and administration of this Agreement, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.


 


9.3                                 Warrant Agent May Hold
Company Securities.  The Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
may buy, sell or deal in any of the Warrants or other securities of the Company
or its Affiliates or become pecuniarily interested in transactions in which the
Company or its Affiliates may be interested, or contract with or lend money to
the Company or its Affiliates or otherwise act as fully and freely as though it
were not the Warrant Agent under this Agreement. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.


 


9.4                                 Resignation and
Removal; Appointment of Successor.  (a)  No resignation or removal of the
Warrant Agent and no appointment of a successor warrant agent shall become
effective until the acceptance of appointment by the successor warrant agent as
provided herein. The Warrant Agent may resign its duties and be discharged from
all further duties and liability hereunder (except liability arising as a
result of the Warrant Agent’s own negligence, willful misconduct or bad faith)
after giving written notice to the Company at least thirty (30) days prior to
the date such resignation will become effective. The Company shall, upon
written request of Holders of a majority of the outstanding Warrants, remove
the Warrant Agent upon written notice provided at least thirty (30) days prior
to the date of such removal, and the Warrant Agent shall thereupon in like
manner be discharged from all further duties and liabilities hereunder, except
as aforesaid. The Warrant Agent shall, at the Company’s expense, cause to be
mailed at the Company’s expense (by first-class mail, postage prepaid) to each
Holder of a Warrant at his last address as shown on the register of the Company
maintained by the Warrant Agent a copy of said notice of resignation or notice
of removal, as the case may be. Upon such resignation or removal, the Person
holding the greatest number of Warrants as of the date of such event shall
appoint in writing a new warrant agent reasonably acceptable to the Company. If
the Person holding the greatest number of Warrants as of the date of such event
shall fail to make such appointment within a period of twenty (20) days after
it has been notified in writing of such resignation by the resigning Warrant
Agent or after such removal, then the Company shall appoint a new warrant
agent. Any new warrant agent, whether appointed by a Holder or by the Company,
shall be a reputable bank, trust company or transfer agent doing business under
the


 


33
















 


laws of the United States or any state thereof, in good standing and
having a combined capital and surplus of not less than $50,000,000. The
combined capital and surplus of any such new warrant agent shall be deemed to
be the combined capital and surplus as set forth in the most recent annual
report of its condition published by such warrant agent prior to its
appointment, provided that such reports are published at least annually
pursuant to law or to the requirements of a Federal or state supervising or examining
authority. After acceptance in writing of such appointment by the new warrant
agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant
Agent, without any further assurance, conveyance, act or deed; but if for any
reason it shall be necessary or expedient to execute and deliver any further
assurance, conveyance, act or deed, the same shall be done at the expense of
the Company and shall be legally and validly executed and delivered by the
resigning or removed Warrant Agent. Not later than the effective date of any
such appointment, the Company shall give notice thereof to the resigning or
removed Warrant Agent. Failure to give any notice provided for in this Section 9.4(a),
however, or any defect therein, shall not affect the legality or validity of
the resignation of the Warrant Agent or the appointment of a new warrant agent,
as the case may be.


 


(b)                                 Any corporation into which
the Warrant Agent or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Warrant Agent or any new warrant
agent shall be a party, shall be a successor Warrant Agent under this Agreement
without any further act, provided that such corporation would be eligible for
appointment as successor to the Warrant Agent under the provisions of Section 9.4(a).  Any such successor Warrant Agent shall
promptly cause notice of succession as Warrant Agent to be mailed (by
first-class mail, postage prepaid) to each Holder of a Warrant at such Holder’s
last address as shown on the register of the Company maintained by the Warrant
Agent.


 


9.5                                 Damages.  No party to this Agreement shall be liable to
any other party for any consequential, indirect, special or incidental damages
under any provision of this Agreement or for any consequential, indirect,
penal, special or incidental damages arising out of any act or failure to act
hereunder even if that party has been advised of or has foreseen the
possibility of such damages.


 


10.                               REPRESENTATIONS AND WARRANTIES.


 


10.1                           Representations and Warranties of the Company.  The Company hereby represents and warrants
that the representations and warranties of the
Company set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 of the Investment
Agreement and Stock Purchase Agreement and any other representations and
warranties made by the Company in Article III of the Investment Agreement
and Stock Purchase Agreements to the extent relating to the Warrants, are true
and accurate in all respects and not misleading in any respect.


 


11.                               COVENANTS.


 


11.1                           Reservation of Common Stock
for Issuance on Exercise of Warrants.  The Company covenants that it will at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, solely for the purpose of issue upon
exercise of Warrants as herein provided, such number of shares of Common Stock
as shall then 


 


34

















 


be issuable upon the exercise of all Warrants issuable hereunder plus
such number of shares of Common Stock as shall then be issuable upon the
exercise of other outstanding warrants, options and rights (whether or not
vested), the settlement of any forward sale, swap or other derivative contract,
and the conversion of all outstanding convertible securities or other
instruments convertible into Common Stock or rights to acquire Common Stock.
The Company covenants that all shares of Common Stock which shall be issuable
shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.


 


11.2                           Notice of Distributions.  At any time when the Company declares any
Distribution on its Common Stock, it shall give notice to the Holders of all
the then outstanding Warrants of any such declaration not less than 15 days
prior to the related record date for payment of the Distribution so declared.


 


11.3                           Replacement of
Warrants.  Upon the
effectiveness of the Plan and in accordance with the Investment Agreement
and/or Stock Purchase Agreements, as applicable, each Warrant shall
automatically be converted into a right to receive warrants to purchase such
number of shares or New Common Stock (as defined in the Investment Agreement,
as effective on the date hereof) (the “New Warrants”) and warrants to
purchase such number of shares of common stock of General Growth Opportunities, Inc.,
a new wholly-owned subsidiary of the Company (the “GGO Warrants”), as is
set forth in Section 5.2 of the Investment Agreement or Stock Purchase
Agreements, as applicable.  If the conversion of the Warrants described
above occurs, (i) the New Warrants and the GGO Warrants shall have
substantially similar terms as are set forth herein except that (w) the
Expiration Date for each New Warrant and GGO Warrant shall be the seventh year
anniversary of the date on which those warrants are issued and (x) the
initial Exercise Price for each New Warrant and GGO Warrant, respectively,
shall be as set forth in the Investment Agreement or Stock Purchase Agreements, as applicable, and (ii) the Company and the Warrant Agent hereby
jointly agree and covenant 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 to effect the issuance of the New Warrants and the GGO Warrants in
accordance with the terms hereof and the terms of the Investment Agreement or
Stock Purchase Agreements, as applicable.


 


12.                               MISCELLANEOUS.


 


12.1                           Money and Other Property
Deposited with the Warrant Agent.  Any moneys, securities or other property
which at any time shall be deposited by the Company or on its behalf with the
Warrant Agent pursuant to this Agreement shall be and are hereby assigned,
transferred and set over to the Warrant Agent in trust for the purpose for
which such moneys, securities or other property shall have been deposited; but
such moneys, securities or other property need not be segregated from other
funds, securities or other property except to the extent required by law. The
Warrant Agent shall distribute any money deposited with it for payment and
distribution to a Holder to an account designated by such Holder in such amount
as is appropriate. Any money deposited with the Warrant Agent for payment and
distribution to the Holders that remains unclaimed for two years after the date
the money was deposited with the Warrant Agent shall be paid to the Company.


 


35

















 


12.2                           Payment of
Taxes.  The Company shall pay all
transfer, stamp and other similar taxes that may be imposed in respect of the
issuance or delivery of the Warrants or in respect of the issuance or delivery
by the Company of any securities upon exercise of the Warrants with respect thereto.
The Company shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of any Warrants,
certificate for shares of Common Stock or other securities underlying the
Warrants or payment of cash to any Person other than the Holder of a Warrant
Certificate surrendered upon the exercise or purchase of a Warrant, and in case
of such transfer or payment, the Warrant Agent and the Company shall not be
required to issue any security or to pay any cash until such tax or charge has
been paid or it has been established to the Warrant Agent’s and the Company’s
satisfaction that no such tax or other charge is due.  The Company and each Initial
Investor agree that neither the issuance nor exercise of the Warrants is
governed by Section 83(a) of the Code or otherwise a compensatory
transaction, and the Company agrees that it will not deduct any amount as
compensation in connection with such issuance or exercise for federal income
tax purpose. The Company and each Initial Investor agree that for federal
income tax purposes, the Warrants have been granted as an option premium in
exchange for each Initial Investor agreeing, at the option of the Company, to
make the equity investment described in the Investment Agreement or Stock
Purchase Agreements, as applicable.


 


12.3                           Surrender of Certificates.  Any Warrant Certificate surrendered for
exercise or purchase shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be
reissued by the Company. The Warrant Agent shall destroy such cancelled Warrant
Certificates.


 


12.4                           Mutilated, Destroyed, Lost
and Stolen Warrant Certificates.  If (a) any mutilated Warrant Certificate
is surrendered to the Warrant Agent or (b) the Company and the Warrant
Agent receive evidence to their satisfaction of the destruction, loss or theft
of any Warrant Certificate, and there is delivered to the Company and the
Warrant Agent such appropriate affidavit of loss, applicable processing fee and
a corporate bond of indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Warrant Agent shall
countersign and deliver, in exchange for any such mutilated Warrant Certificate
or in lieu of any such destroyed, lost or stolen Warrant Certificate, a new
Warrant Certificate of like tenor and for a like aggregate number of Warrants.


 


Upon the issuance of any new Warrant Certificate
under this Section 12.4, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and other expenses (including the reasonable fees and expenses
of the Warrant Agent and of counsel to the Company) in connection therewith.


 


Every new Warrant Certificate executed and delivered
pursuant to this Section 12.4 in lieu of any destroyed, lost or
stolen Warrant Certificate shall constitute an original contractual obligation
of the Company, whether or not the destroyed, lost or stolen Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement 


 


36

















 


equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder.


 


The provisions of this Section 12.4 are
exclusive and shall preclude (to the extent lawful) all other rights or
remedies with respect to the replacement of mutilated, destroyed lost or stolen
Warrant Certificates.


 


12.5                           Removal of Legends.  Certificates evidencing the Warrants and
shares of Common Stock issued upon exercise of the Warrants shall not be
required to contain any legend referenced in Sections 2.1, 3.6(e) and
3.6(f) (A) while a registration statement (solely for the
purposes of this and the immediately following paragraph, such term to include
a Registration Statement) covering the resale of the Warrants or the shares of
Common Stock is effective under the Securities Act, or (B) following any
sale of any such Warrants or shares of Common Stock pursuant to Rule 144,
or (C) following receipt of a legal opinion of counsel to Holder that the
remaining Warrants or shares of Common Stock held by Holder are eligible for
resale without volume limitations or other limitations under Rule 144.  In addition, the Company and the Warrant
Agent will agree to the removal of all legends with respect to Warrants or
shares of 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
any such legend is no longer required (as provided above) for certain Warrants
or shares of Common Stock, the Company shall promptly, following the delivery
by Holder to the Warrant Agent of a legended certificate representing such
Warrants or shares of Common Stock, as applicable, deliver or cause to be
delivered to the Holder a certificate representing such Warrants or shares of
Common Stock that is free from such legend. 
In the event any of the legends referenced in Sections 2.1, 3.6(e) and
or 3.6(f) are removed from any of the Warrants or shares of Common
Stock, and thereafter the effectiveness of a registration statement covering
such Warrants or shares of Common Stock is suspended or the Company determines
that a supplement or amendment thereto is required by applicable securities
Laws, then the Company may require that such legends, as applicable, be placed
on any such applicable Warrants or shares of Common Stock that cannot then be
sold pursuant to an effective registration statement or under Rule 144 and
Holder shall cooperate in the replacement of such legend.  Such legend shall thereafter be removed when
such Warrants or shares of Common Stock may again be sold pursuant to an
effective registration statement or under Rule 144.


 


12.6                           Notices.  (a)  Any notice, demand or delivery
authorized by this Agreement shall be sufficiently given or made when mailed if
sent by first-class mail, postage prepaid, addressed to any Holder of a Warrant
at such Holder’s address shown on the register of the Company maintained by the
Warrant Agent and to the Company or the Warrant Agent as follows:


 


	
  If to the Company, to:

  	
   

  
	
   

  	
   

  
	
  General Growth
  Properties, Inc.

  	
   

  
	
  110 N. Wacker Drive

  	
   

  



 


37

















 


	
  Chicago IL 60606

  	
   

  
	
  Attention: Ronald L.
  Gern, Esq.

  	
   

  
	
  Fax: 312-960-5485

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  
	
  Weil, Gotshal & Manges LLP

  	
   

  
	
  767 Fifth Avenue

  	
   

  
	
  New York, NY 10153

  	
   

  
	
  Attention: 

  	
  Marcia L.
  Goldstein, Esq.

  	
   

  
	
   

  	
  Frederick S.
  Green, Esq.

  	
   

  
	
   

  	
  Gary T. Holtzer, Esq.

  	
   

  
	
   

  	
  Malcolm E.
  Landau, Esq.

  	
   

  
	
  Facsimile: (212) 310-8007

  	
   

  
	
   

  	
   

  
	
  If to the Warrant Agent, to:

  	
   

  
	
   

  	
   

  
	
  [·]

  	
   

  



 


or such other address as shall have been
furnished to the party giving or making such notice, demand or delivery.


 


(b)                                 Any notice required to be
given by the Company to the Holders pursuant to this Agreement, shall be made by
mailing by registered mail, return receipt requested, to the Holders at their
respective addresses shown on the register of the Company maintained by the
Warrant Agent. The Company hereby irrevocably authorizes the Warrant Agent, in
the name and at the expense of the Company, to mail any such notice upon
receipt thereof from the Company. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given when
mailed, whether or not the Holder receives the notice.


 


12.7                           Applicable Law; Jurisdiction.  This Agreement and each Warrant issued
hereunder and all rights arising hereunder shall be governed by the internal
laws of the State of New York.  In
connection with any action, suit or proceeding arising out of or relating to
this Agreement or the Warrants, the parties hereto and each Holder irrevocably
submit to (i) the exclusive jurisdiction of the United States Bankruptcy
Court for the Southern District of New York until the chapter 11 cases of the
Company and its Affiliates are closed, and (ii) the nonexclusive
jurisdiction of any federal or state court located within the County of New
York, State of New York.


 


12.8                           Persons Benefiting.  This Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators, and the
Holders from time to time of the Warrants.  The Holders of the Warrants are express third
party beneficiaries of this Agreement and each such Holder of Warrants is
hereby conferred the benefits, rights and remedies under or by reason of the
provisions of this Agreement as if a signatory hereto.  Nothing in this Agreement is
intended or shall be construed to confer upon any Person, other than the
Company, the Warrant 


 


38

















 


Agent and the Holders of the Warrants, any right, remedy or claim under
or by reason of this Agreement or any part hereof.


 


12.9                           Relationship to
Investment Agreement and Stock Purchase Agreements.  The Warrants issued hereunder
have been fully paid upon issuance and shall remain issued, outstanding and
binding on the parties in accordance with the terms hereof notwithstanding any
failure of the transactions contemplated by the Investment Agreement or Stock
Purchase Agreements, as applicable, to be
consummated, any default by any party to the Investment Agreement or Stock
Purchase Agreements, as applicable, or the
invalidity or unenforceability thereof. 
Notwithstanding the preceding sentence, if a failure by any Purchaser to
pay all amounts payable by such Purchaser under Article I and Article II
of the Investment Agreement or a Stock Purchase Agreements, as applicable, causes the termination of the Investment Agreement or
a Stock Purchase Agreement, as applicable, by the Company pursuant to Section 11.1(c)(iii) therein,
each Holder that is a member of the Purchaser Group of such Purchaser agrees
that as liquidated damages for such failure and without prejudice to the rights
and remedies of the Company under the Investment Agreement or Stock Purchase
Agreements, as applicable, any
Warrants held by such Holder shall be deemed cancelled, null and void and of no
further effect.  For the avoidance of doubt, the immediately preceding sentence applies only
to a Holder that is a member of a Purchaser Group where the applicable
Purchaser fails to pay all amounts payable by such Purchaser under Article I
and Article II of the Investment Agreement or a Stock Purchase Agreement,
as applicable, causing the termination of the Investment Agreement or a Stock
Purchase Agreement, as applicable, by the Company pursuant to Section 11.1(c)(iii) thereof,
and not to any permitted transferee of such member or any other Person.


 


12.10                     Counterparts.  This Agreement may be executed in any number
of counterparts, each or which shall be deemed an original, but all of which
together constitute one and the same instrument.


 


12.11                     Amendments.  (a)  The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval
of any Holder in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, or to make any other provisions with regard to matters
or questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and, in each case, which shall not adversely affect the
interests of any Holder.


 


(b)                                 In addition to the
foregoing, with the consent of the Supermajority
Holders, the Company and the Warrant Agent may modify this Agreement for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Warrant Agreement or modifying in any manner the
rights of the Holders hereunder; provided, however, that no modification
effecting the terms upon which the Warrants are exercisable, redeemable or
transferable, or reduction in the percentage required for consent to
modification of this Agreement, may be made without the consent of each Holder
affected thereby.


 


12.12                     Headings.  The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience and shall
not control or affect the meaning or construction of any of the provisions
hereof.


 


39

















 


12.13                     Entire Agreement.  This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof. In the
event of any conflict, discrepancy, or ambiguity between the terms and
conditions contained in this Agreement and any schedules or attachments hereto,
the terms and conditions contained in this Agreement shall take precedence.


 


12.14                     Specific Performance.  The parties shall be entitled to specific performance of the terms of
this Agreement.  Each of the parties
hereto hereby waives (i) any defenses in any action for specific
performance, including the defense that a remedy at law would be adequate and (ii) any
requirement under any Law to post a bond or other security as a prerequisite to
obtaining equitable relief.


 


[signature
page follows]


 


40

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed, as of the day and year first above
written.


 


 


	
   

  	
  GENERAL GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Warrant Agent]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


41
















 


EXHIBIT A


 


FORM OF FACE OF WARRANT CERTIFICATE


 


THESE WARRANTS AND THE SECURITIES
ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS.
THESE WARRANTS AND SUCH SECURITIES MAY BE OFFERED, SOLD OR TRANSFERRED
ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE
STATE SECURITIES LAWS AND SUBJECT TO THE PROVISIONS OF THE WARRANT AND
REGISTRATION RIGHTS AGREEMENT DATED AS OF [    ], 2010
BETWEEN GENERAL GROWTH PROPERTIES, INC. (THE “COMPANY”) AND
                                                ,
WARRANT AGENT. A COPY OF SUCH WARRANT AND REGISTRATION RIGHTS AGREEMENT IS
AVAILABLE AT THE OFFICES OF THE COMPANY.


 


WARRANTS TO
PURCHASE COMMON STOCK

OF GENERAL GROWTH PROPERTIES, INC.


 


	
  No.                             

  	
  Certificate for
                                    
  Warrants

  



 


This certifies that [HOLDER] , or registered
assigns, is the registered holder of the number of Warrants set forth above.
Each Warrant entitles the holder thereof (a “Holder”), subject to the
provisions contained herein and in the Warrant and Registration Rights
Agreement referred to below, to purchase from GENERAL GROWTH PROPERTIES, INC.
(the “Company”), one share of the Company’s common stock, par value
$0.01 (“Common Stock”), subject to adjustment upon the occurrence of
certain events specified herein and in the Warrant and Registration Rights
Agreement, at the exercise price (the “Exercise Price”) of $15 per
share, subject to adjustment upon the occurrence of certain events specified
herein and in the Warrant Agreement.


 


This Warrant Certificate is issued under and in
accordance with the Warrant and Registration Rights Agreement, dated as of
[    ], 2010 (the “Warrant Agreement”), between the
Company and
[                                                ],
warrant agent (the “Warrant Agent”, which term includes any successor
Warrant Agent under the Warrant Agreement), and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. The Warrant Agreement is hereby incorporated herein by reference and
made a part hereof. Reference is hereby made to the Warrant Agreement for a
full statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Warrant Agent and the
Holders of the Warrants.


 


This Warrant Certificate shall terminate and be void
as of the close of business on
[              ],
2017(3) (the “Expiration Date”).


 






(3)                                  Note to Draft:  Insert the date that is the seventh
anniversary of the date on which those Warrants are issued.


 

















 


As provided in the Warrant Agreement and subject to
the terms and conditions therein set forth, the Warrants shall be exercisable
from time to time on any Business Day and ending on the Expiration Date.


 


The Exercise Price and the number of shares of
Common Stock issuable upon the exercise of each Warrant are subject to
adjustment as provided in the Warrant Agreement.


 


All shares of Common Stock issuable by the Company
upon the exercise of Warrants shall, upon such issue, be duly and validly
issued and fully paid and non-assessable.


 


In order to exercise a Warrant, the registered
holder hereof must surrender this Warrant Certificate at the corporate trust
office of the Warrant Agent, with the Exercise Subscription Form on the
reverse hereof duly executed by the Holder hereof, with signature guaranteed as
therein specified, together with any required payment in full of the Exercise
Price (unless the Holder shall have elected Net Share Settlement, as such term
is defined in the Warrant Agreement) then in effect for the share(s) of
Underlying Common Stock as to which the Warrant(s) represented by this
Warrant Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement.


 


The Company shall pay all transfer, stamp and other
similar taxes that may be imposed in respect of the issuance or delivery of the
Warrants or in respect of the issuance or delivery by the Company of any
securities upon exercise of the Warrants with respect thereto. The Company
shall not be required, however, to pay any tax or other charge imposed in
connection with any transfer involved in the issue of any Warrants, certificate
for shares of Common Stock or other securities underlying the Warrants or
payment of cash in each case to any Person other than the Holder of a Warrant
Certificate surrendered upon the exercise or purchase of a Warrant, and in case
of such transfer or payment, the Warrant Agent and the Company shall not be
required to issue any security or to pay any cash until such tax or charge has
been paid or it has been established to the Warrant Agent’s and the Company’s
satisfaction that no such tax or other charge is due.


 


This Warrant Certificate and all rights hereunder
are transferable by the registered holder hereof, subject to the terms of the
Warrant Agreement, in whole or in part, on the register of the Company, upon
surrender of this Warrant Certificate for registration of transfer at the
office of the Warrant Agent maintained for such purpose in the City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Warrant Agent duly executed by, the
Holder hereof or his attorney duly authorized in writing, with signature
guaranteed as specified in the attached Form of Assignment. Upon any
partial transfer, the Company will issue and deliver to such holder a new
Warrant Certificate or Certificates with respect to any portion not so
transferred.


 


No service charge shall be made to a Holder for any
registration of transfer or exchange of the Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.


 


Subject to compliance with any restrictions on
transfer under applicable law and this Warrant Agreement, each taker and holder
of this Warrant Certificate by taking or holding the 


 


2

















 


same, consents and agrees
that this Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and that when this Warrant Certificate shall have been so endorsed,
the holder hereof may be treated by the Company, the Warrant Agent and all
other Persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by the Warrant Agent, any notice to the contrary notwithstanding,
but until such transfer on such register, the Company and the Warrant Agent may
treat the registered Holder hereof as the owner for all purposes.


 


This Warrant Certificate and the Warrant Agreement
are subject to amendment as provided in the Warrant Agreement.


 


All terms used in this Warrant Certificate that are
defined in the Warrant Agreement shall have the meanings assigned to them in
the Warrant Agreement.


 


Copies of the Warrant Agreement are on file at the
office of the Company and the Warrant Agent and may be obtained by writing to
the Company or the Warrant Agent at the following address:
[                                                ].


 


This Warrant Certificate shall not be valid for any
purpose until it shall have been countersigned by the Warrant Agent.


 


Dated:
              ,                


 


	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name and
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name and
  Title:

  



 


Countersigned:


 


                            ,
Warrant Agent


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


3

















 


EXHIBIT A


 


FORM OF REVERSE OF WARRANT CERTIFICATE


 


EXERCISE SUBSCRIPTION FORM


 


(To be executed only upon exercise of Warrant)


 


To:


 


The undersigned irrevocably exercises
                                            
of the Warrants for the purchase of one share (subject to adjustment in
accordance with the Warrant Agreement) of common stock, par value $0.01, of
General Growth Properties, Inc. for each Warrant represented by the
Warrant Certificate and herewith (i) elects for Net Share Settlement of
such Warrants by marking X in the space that follows
        , or (ii) makes payment of
$                              
(such payment being by means permitted by the Warrant Agreement and the within
Warrant Certificate), in each case at the Exercise Price and on the terms and
conditions specified in the within Warrant Certificate and the Warrant Agreement
therein referred to, and herewith surrenders this Warrant Certificate and all
right, title and interest therein to
                                                
and directs that the shares of Common Stock deliverable upon the exercise of
such Warrants be registered in the name and delivered at the address specified
below.


 


	
  Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   *

  
	
   

  	
  (Signature
  of Owner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street
  Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)

  	
  (State) (Zip Code)

  
	
   

  	
   

  
	
   

  	
  Signature
  Guaranteed by:

  
	
   

  	
   

  
	
   

  	
   

  
						



 






*                                         The
signature must correspond with the name as written upon the face of the within
Warrant Certificate in every particular, without alteration or enlargement or
any change whatever, and must be guaranteed by a financial institution
satisfactory to the Warrant Agent.


 


1

















 


Securities to be issued to:


 


 


Please insert social security or identifying
number:


 


 


Name:


 


 


Street Address:


 


 


City, State and Zip Code:


 


 


Any unexercised Warrants evidenced by the
within Warrant Certificate to be issued to:


 


 


Please insert social security or identifying
number:


 


 


Name:


 


 


Street Address:


 


 


City, State and Zip Code:


 


2

















 


EXHIBIT B


 


FORM OF ASSIGNMENT


 


FOR VALUE RECEIVED the undersigned registered
holder of the within Warrant Certificate hereby sells, assigns, and transfers
unto the Assignee(s) named below (including the undersigned with respect
to any Warrants constituting a part of the Warrants evidenced by the within
Warrant Certificate not being assigned hereby) all of the right of the
undersigned under the within Warrant Certificate, with respect to the number of
Warrants set forth below:


 


	
  Names of Assignees

  	
   

  	
  Address

  	
   

  	
  Social
  Security or

  other Identifying

  Number of

  Assignee(s)

  	
   

  	
  Number of

  Warrants

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


and does hereby irrevocably constitute and
appoint
                            
the undersigned’s attorney to make such transfer on the books of
                        
maintained for that purpose, with full power of substitution in the premises.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   *

  
	
   

  	
  (Signature
  of Owner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street
  Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)

  	
  (State) (Zip Code)

  
	
   

  	
   

  
	
   

  	
  Signature
  Guaranteed by:

  
	
   

  	
   

  
	
   

  	
   

  
						



 






*                                         The
signature must correspond with the name as written upon the face of the within
Warrant Certificate in every particular, without alteration or enlargement or
any change whatever, and must be guaranteed by a financial institution
satisfactory to the Warrant Agent.


 


2
















 


EXHIBIT C


 


Option Pricing Assumptions / Methodology


 


For the purpose of this Exhibit C:


 


“Acquiror” means (A) the third
party that has entered into definitive document for a transaction, or (B) the
offeror in the event of a tender or exchange offer.


 


“Reference Date”
means the date of consummation of a Change of Control Event.


 


The Cash Redemption Value of
the Warrants shall be determined using the Black-Scholes Model as applied to
third party options (i.e., options
issued by a third party that is not affiliated with the issuer of the
underlying stock).  For purposes of
the model, the following terms shall have the respective meanings set forth
below:


 


	
  Underlying Security Price:

  	
  ·                  In the
  event of a merger or other acquisition,

   

  (A)        that
  is an “all cash” deal, the cash per share of Common Stock to be paid to the
  Company’s stockholders in the transaction;

   

  (B)          that
  is an “all Public Stock” deal,

   

  (1) that
  is a “fixed exchange ratio” transaction, a “fixed value” transaction where as
  a result of a cap, floor, collar or similar mechanism the number of Acquiror’s
  shares to be paid per share of Common Stock to the Company’s stockholders in
  the transaction is greater or less than it would otherwise have been or a
  transaction that is not otherwise described in this clause (B)(1) or
  clause (B)(2) below, the product of (i) the Fair Market Value of
  the Acquiror’s common stock on the day preceding the date of the Preliminary
  Change of Control Event and (ii) the number of Acquiror’s shares per
  share of Common Stock to be paid to the Company’s stockholders in the
  transaction (provided that the Independent Financial Expert shall make
  appropriate adjustments to the Fair Market Value of the Acquiror’s common
  stock referred to above
  as may be necessary or appropriate to effectuate the intent of this Exhibit C
  and to avoid unjust or inequitable results as determined in its reasonable
  good faith judgment, in each case to account for any event impacting the
  Acquiror’s common stock that is analogous to any of the events described in Article V
  of this Agreement if the record date, ex date or effective date of that event
  occurs during or after the 10 trading 

  



 

















 


	
   

  	
  day period over which such Fair Market Value is measured)
  and

   

  (2) that is a “fixed value” transaction not covered
  by clause (B)(1) above, the value per share of Common Stock to be paid
  to the Company’s stockholders in the transaction;

   

  (C)          that
  is a transaction contemplating various forms of consideration for each share
  of Common Stock,

   

  (1) the
  cash portion, if any, shall be valued as described in clause (A) above,

   

  (2) the
  Public Stock portion shall be valued as described in clause (B) above
  and

   

  (3) any
  other forms of consideration shall be valued by the Independent Financial
  Expert valuing the Warrants, using one or more valuation methods that the
  Independent Financial Expert in its best professional judgment determines to
  be most appropriate, assuming such consideration (if securities) is fully
  distributed and is to be sold in an arm’s-length transaction and there was no
  compulsion on the part of any party to such sale to buy or sell and taking
  into account all relevant factors  and without
  applying any discounts to such consideration.

   

  ·                  In the
  event of all other Change of Control Event events, the Fair Market Value per
  share of the Common Stock on the last trading day preceding the date of the
  Change of Control Event.

  
	
   

  	
   

  
	
  Exercise Price:

  	
  The
  Exercise Price as adjusted and then in effect for the Warrant.

  
	
   

  	
   

  
	
  Dividend Rate:

  	
  0 (which
  reflects the fact that the antidilution adjustment provisions cover all
  dividends).

  
	
   

  	
   

  
	
  Interest Rate:

  	
  The
  annual yield as of the Reference Date (expressed on a semi-annual basis in
  the manner in which U.S. treasury notes are ordinarily quoted) of the U.S.
  treasury note maturing approximately at the Expiration Date as selected by
  the Independent Financial Expert.

  
	
   

  	
   

  
	
  Put or Call:

  	
  Call

  



 

















 


	
  Time to Expiration

  	
  The number of days from the Expiration Date (as
  defined in Section 3.3) to the Reference Date divided by 365.

  
	
   

  	
   

  
	
  Settlement Date:

  	
  The
  scheduled date of payment of the Cash Redemption Value.

  
	
   

  	
   

  
	
  Volatility:

  	
  For
  calculation of Cash Redemption Value in connection with a Change of Control
  Event with respect to (A) the Warrants or the New Warrants, 20% or (B) the
  GGO Warrants, the lesser of (1) 30% or (2) the volatility of
  General Growth Opportunities, Inc. as determined by an Independent
  Financial Expert engaged to make the calculation, who shall be instructed to
  assume for purposes of the determination of volatility referred to in this
  clause (B)(2) that the Change of Control Event had not occurred;
  provided, however, that if the Warrants, New Warrants or GGO Warrants are
  adjusted as a result of a Change of Control Event, volatility for purposes of
  calculating Cash Redemption Value in connection with succeeding Change of
  Control Events with respect to such warrants (or their successors) shall be
  as determined by an Independent Financial Expert engaged to make the calculation,
  who shall be instructed to assume for purposes of the calculation that such
  succeeding Change of Control Event had not occurred.

  



 


Such valuation of the Warrant shall not be
discounted in any way.


 


For illustrative purposes only, an example Black-Scholes
model calculation with respect to a hypothetical warrant appears on the
following page.


 

















 


Illustrative Example


 


Inputs:


 


S = Underlying Security Price


 


X = Exercise Price


 


PV(X) = Present value of the Exercise Price, discounted at
a rate of R = X * (e^-(R * T))


 


V = Volatility


 


R = continuously compounded risk free rate = 2 * [
ln (1 + Interest Rate / 2) ]


 


T = Time to Expiration


 


W = warrant value per underlying share


 


Z = number of shares underlying warrants


 


Value = total warrant value


 


Formulaic inputs:


 


D1 = [ ln [ S / X ] + (R + (V^2 / 2)) * T)] ÷ (V * ÖT)


 


D2 = [ ln [ S / X ] + (R - (V^2 / 2)) * T)] ÷ (V * ÖT)


 


Black-Scholes Formula


 


W = [N(D1) * S] — [N(D2) * PV(X)]


 


Where “N” is the cumulative normal probability
function


 


Value = W * Z


 


Example of a Hypothetical Warrant:(4)


 






(4)                                  Note:  Amounts calculated herein may not foot due to
rounding error.  For precise
calculations, decimal points should not be rounded.


 

















 


Inputs:


 


Interest Rate = 4.00%


 


S = $50.00


 


X = $60.00


 


PV(X) = $55.43


 


V = 25%


 


R = 3.96%


 


T = 2


 


Z = 100


 


Formulaic inputs:


 


D1                                = [ ln [ S / X
] + (R + (V^2 / 2)) * T)] ÷ (V * ÖT)


 


= (-0.1149)


 


D2                                = [ ln [ S / X
] + (R - (V^2 / 2)) * T)] ÷ (V * ÖT)


 


= (-0.4684)


 


Black-Scholes Formula


 


W                                   = [N(D1) * S] —
[N(D2) * PV(E)]


 


= $4.99


 


Total Warrant Value


 


Value                = W * Z


 


= $499


 

















 


SCHEDULE A


 


ALLOCATIONS OF WARRANTS AND


 


UNDERLYING SHARES TO INITIAL INVESTORS


 


[TO COME]


 

















 


SCHEDULE B


 


WARRANT AGENT COMPENSATION


 


[TO COME]


 
















Exhibit
M


 


NON-CONTROL AGREEMENT (GGP Version)


 


This Non-Control Agreement (this “Agreement”)
is dated as of [·] 2010 (the “Effective Date”),
by and between General Growth Properties, Inc., a Delaware corporation (the “Company”),
[insert names of Pershing Square or Fairholme purchasers](1) (collectively,
“Investor”).


 


WHEREAS, Investor has entered into that certain
Stock Purchase Agreement, dated as of [·], 2010 (the “Investment
Agreement”), that contemplates, among other things, the purchase by
Investor of shares of Common Stock subject to the terms and conditions
contained therein;


 


WHEREAS,
the transactions contemplated by the Investment Agreement are intended to
assist the Company in its plans to recapitalize and emerge from bankruptcy and
is not intended to constitute a change of control of the Company or otherwise
give Investor the power to control the business and affairs of the Company;


 


WHEREAS, as a material condition to the Company’s
and Investor’s obligations to consummate the transactions contemplated by the
Investment Agreement, the Company and Investor have agreed to execute this
Agreement; and


 


WHEREAS, certain terms used in this Agreement are
defined in Section 4.1.


 


NOW THEREFORE, in consideration of the premises and
the mutual covenants and agreements hereinafter contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:


 


ARTICLE
I


 


COMPANY
RELATED PRINCIPLES


 


SECTION 1.1            Board of Directors.  So long as
Investor and the Investor Parties, collectively, shall Beneficially Own more
than ten percent (10%) of the outstanding shares of Common Stock, none of Investor or the
Investor Parties shall take any action that is inconsistent with its support
for the following corporate governance principles:


 


(a)           A majority of the members of the Board shall be
Independent Directors, where “Independent Director” means a director who
satisfies all standards for independence promulgated by the New York Stock
Exchange (or the applicable exchange where shares of Common Stock are then
listed);


 






(1) The purchasers
under Pershing Square’s Investment Agreement will collectively sign one
Non-Control Agreement and the purchasers under Fairholme’s Investment Agreement
will collectively sign another Non-Control Agreement.  The terms of those two agreements will be
substantially similar except for the differences described in the footnotes
later in this agreement.


 

















 


(b)           the Board shall have a nominating committee, a
majority of which shall be Disinterested Directors;


 


(c)           in connection with any stockholder meeting or consent
solicitation relating to the election of members of the Board, if Investor and
the Investor Parties, collectively, Beneficially Own a number of shares of Common
Stock greater than 10% of the shares of Common Stock outstanding as of the
applicable record date (or, if larger, the largest number of shares that any
Large Stockholder would be permitted to vote in such election, ignoring for
this purpose the right of any Large Stockholder that is a party to the
Brookfield Non-Control Agreement to cast votes for Purchaser Board Designees
and the right of any Large Stockholder that is a party to a transferee
agreement in the form required by this Agreement or the Brookfield Non-Control
Agreement to vote for one director in its sole discretion), then Investor
shall, and shall cause the other Investor Parties to, vote in such election of
members all shares they Beneficially Own in excess of such number of shares in
proportion to the Votes Cast;(2)


 


(d)           the Board shall consist of
nine (9) members and not be increased or reduced, unless approved by
seventy-five percent (75%)  of the Board;


 


(e)           any Change in Control (other
than a transaction contemplated by Section 2.1(b)(ii)) in which a Large
Stockholder or its controlled Affiliate is the acquiror or part of the acquiror
group or is proposed to be directly or indirectly combined with the Company
must be approved by a majority of the Disinterested Directors as if it were an
Affiliated Transaction involving such Large Stockholder and by a majority of
the voting power of the stockholders (other than such Large Stockholder or its
controlled Affiliates); and


 


(f)            any Change in Control (other
than a transaction contemplated by Section 2.2(b)(v)) in which any Large
Stockholder or its controlled Affiliate receives per share consideration in its
capacity as a stockholder of the Company in excess of that to be received by
other stockholders, must be approved by a majority of the Disinterested
Directors as if it were an Affiliated Transaction involving such Large
Stockholder and by a majority of the voting power of the stockholders (other
than such Large Stockholder or its controlled Affiliates).


 


The Company shall not waive any
provisions similar to Sections 1.1(c), (e) or (f) above for any Large
Stockholder under any other agreement unless the Company grants a similar
waiver under this Agreement.


 


SECTION 1.2            Related Party Transactions.


 


(a)           Without the approval of a majority of the Disinterested
Directors, Investor shall not, and shall not permit any of the Investor Parties
to, engage in any Affiliated Transaction. 
“Affiliated Transaction” means (i) any transaction or series
of related transactions, 


 






(2) In
the Fairholme Non-Control Agreement, this will read: “in connection with any
stockholder meeting or consent solicitation, if Investor and the Investor
Parties have voting control over a number of shares of Common Stock in excess
of 10% of the number of shares of Common Stock outstanding as of the applicable
record date, then Investor shall, and shall cause the other Investor Parties
to, vote all shares over which they have voting control in excess of such
percentage in proportion to the Votes Cast;”


 


2

















 


directly or indirectly, between the Company or any
Subsidiary of the Company, on the one hand, and any of the Investor Parties, on
the other hand, or (ii) without limiting the Company’s obligation to
comply with Sections 1.4 and 1.5 hereof, with respect to the
purchase or sale of Common Stock by any of the Investor Parties, any waiver of
any limitation or restriction with respect to such purchase or sale in the
Charter or the Transaction Documents, including any exemption from the Ownership
Limit (as defined in the Charter); provided, however, that none
of the following shall constitute an Affiliated Transaction:


 


(i)            transactions expressly contemplated in the Transaction
Documents;


 


(ii)           customary compensation arrangements (whether in the
form of cash or equity awards), expense reimbursement, director insurance
coverage and/or indemnification arrangements (and related advancement of
expenses) in each case for Board designees, or any use by such persons, for
Company business purposes, of aircraft, vehicles, property, equipment or other
assets owned or customarily provided to members of the Board by the Company or
any of its Subsidiaries; and


 


(iii)          any transaction or series of transactions if the same
is in the Ordinary Course of Business and does not involve payments by the
Company in excess of [$·] in the aggregate for such transaction or
series of transactions.


 


(b)           Following the Closing (as such term is defined in the
Investment Agreement), any decisions by the Company regarding material
amendments or modifications of the Plan (as such term is defined in the
Investment Agreement) or waivers of the Company’s material rights under the
Plan, shall require the approval of the majority of Disinterested Directors to
the extent such amendment, modification or waiver relates to any Investor Party’s
rights or obligations.


 


SECTION 1.3          No Other Voting Restrictions. 
For the avoidance of doubt, except as restricted herein or by applicable
Law, Investor and the other Investor Parties may vote the Common Stock that they Beneficially
Own in their sole and
absolute discretion.


 


SECTION 1.4          Amendment of the Charter. 
The Company hereby agrees that following the Closing Date, without the
consent of Investor, the Company shall not amend (or propose to amend) the
provisions of the Charter in a manner that would:  (a) amend the restriction on Beneficial
Ownership (as such term is defined in the Charter) of the outstanding capital
stock of the Company to a level other than 9.9%; (b) amend the restriction
on Constructive Ownership (as such term is defined in the Charter) of the
outstanding capital stock of the Company to a level other than 9.9%; or (c) amend
any waiver from the restrictions set forth in the foregoing clauses (a) and
(b) granted to Investor or any Investor Party in any manner adverse to
Investor or any Investor Party.


 


SECTION 1.5          Waiver of Ownership Limited in the Charter.  The Company and the Board shall
take all appropriate and necessary action to ensure that the ownership
limitations set forth in the Charter shall be waived with respect to Investor,
the Investor Parties, any Investor Investment Advisor and any Person (other
than a transferee under Section 2.2(b)(vi) unless such
transferee executes a Transferee Agreement) to whom Investor, any Investor
Party or any 


 


3

















 


Investor Investment Advisor has transferred any of the
Common Stock or Warrants in accordance with the terms of this Agreement and the
Investment Agreement, provided, insofar as the waiver relates to
Investor, an Investor Party, an Investor Investment Advisor or a transferee, as the case may be, who owns (or would,
following such transfer, own) interests in excess of the Ownership Limit (as
defined in the Charter), that the Company has been provided with a certificate
containing the representations and covenants set forth on Exhibit D
to the Investment Agreement (or, to the extent necessitated by the
organizational structure of the party providing such certificate, a certificate
substantially similar to such Exhibit D) from such Investor,
Investor Party, Investor Investment Advisor or transferee, or in the case of a
transferee, a certificate containing the representations and covenants set
forth on Exhibit D to the Investment Agreement (or, to the extent
necessitated by the organizational structure of the party providing such
certificate, a certificate substantially similar to Exhibit D) as
modified to allow such transferee to own stock or other equity interests in a
tenant of the Company or its Subsidiaries to the extent such ownership would
not result in (i) the Company or any of its REIT Subsidiaries other than
GGP-Natick Trust or GGP Ivanhoe, Inc. recognizing more than $1 million of “related
party rent” in any year or (ii) GGP Natick Trust or GGP Ivanhoe, Inc.
recognizing more than $100,000 of “related party rent” in any year.  The parties hereto agree that the Company
may, in the discretion of the Board, grant to third parties any other waivers
from restrictions set forth in the Charter.


 


ARTICLE
II


 


INVESTOR
RELATED COVENANTS


 


SECTION 2.1            Ownership Limitations.


 


(a)           Except as provided in Section 2.1(b),
Investor agrees that it (together with the other Investor Parties) shall not
acquire Economic Ownership of shares of Common Stock that would result in the
Investor Parties in the aggregate Economically Owning a percentage of the
then-outstanding Common Stock on a Fully Diluted Basis that is greater than the
Ownership Cap.  For the avoidance of doubt,
no Person shall be in violation of this Section 2.1 as a result of (i) any
acquisition by the Company of any Common Stock; (ii) any change in the
percentage of the Investor Parties’ Economic Ownership of Common Stock that
results from a change in the aggregate number of shares of Common Stock
outstanding; or (iii) any change in the number of shares of Common Stock
Economically Owned by the Investor Parties as a result of any anti-dilution
adjustments to any Equity Securities (as defined in the Investment Agreement)
Economically Owned by any Investor Party.


 


(b)           Notwithstanding Section 2.1(a), any of the
Investor Parties may acquire Economic Ownership of shares of Common Stock that
would result in the Investor Parties (taken as a whole) having Economic
Ownership of a percentage of the then-outstanding Common Stock on a Fully
Diluted Basis that is greater than the Ownership Cap under any of the following
circumstances:


 


(i)            acquisitions of shares pursuant to any pro rata stock
dividend or stock distribution effected by the Company and approved by a
majority of the Independent Directors;


 


4

















 


(ii)           if such acquisition is pursuant to a tender offer or
exchange offer, in each case that includes an offer for all outstanding shares
of Common Stock owned by the Target Stockholders, or a merger, consolidation,
binding share exchange or similar transaction pursuant to an agreement with the
Company, so long as in each case (A) such offer, merger, consolidation,
binding share exchange or similar transaction is approved by a majority of the
Disinterested Directors or by a special committee comprised of Disinterested
Directors (such tender offer or exchange offer, an “Approved Offer”, and such merger,
consolidation, binding share exchange or similar transaction, an “Approved Merger”),
and (B) in any such Approved Offer, a majority of the Target Shares are
tendered into such Approved Offer and not withdrawn prior to the final
expiration of such Approved Offer, or in such Approved Merger, a majority of
the Target Shares that are voted (in person or by proxy) on the related
transaction proposal are voted in favor of such proposal.  As used in this Section 2.1(b)(ii):  “Target Shares” means the
then-outstanding shares of Common Stock not owned by the Investor Parties; and “Target
Stockholders” means the stockholders of the Company other than the Investor
Parties.


 


(c)           The limitation set forth in Section 2.1(a) may
only be waived by the Company if a majority of the Disinterested Directors
consent thereto.


 


SECTION 2.2            Transfer Restrictions.


 


(a)           Subject to Section 2.2(b), unless approved
by a majority of the Independent Directors, Investor shall not, and shall not
permit any of the Investor Parties to, sell or otherwise transfer or agree to
transfer (each of the foregoing, a “Transfer”), directly or indirectly,
any shares of Common Stock that are held directly or indirectly by Investor or
any of the other Investor Parties if, immediately after giving effect to such
Transfer, the Person that acquires such Common Stock (other than any
underwriter acting in such capacity in an underwritten public offering of such
shares) would, together with its Affiliates, to the actual knowledge (“Knowledge”)
of the transferor Beneficially Own more than ten percent (10%) of the
then-outstanding Common Stock.  A transferor
shall be deemed to have Knowledge of any transferee’s Beneficial Ownership of
Common Stock if the transferor has actual knowledge of the identity of the
transferee and such Beneficial Ownership has been, at the time of the agreement
to transfer, publicly disclosed in accordance with Section 13 of the
Exchange Act.


 


(b)           The limitations in Section 2.2(a) shall
not apply, and any Investor Party may Transfer freely:


 


(i)            to any Person (including any Affiliate of Investor) if
such Person (A) has executed and delivered to the Company a Transferee
Agreement (as defined below), and (B) has provided the Company with a
certificate containing the representations set forth on Exhibit D
of the Investment Agreement (or, to the extent necessitated by the
organizational structure of the party providing such certificate, a certificate
substantially similar to such Exhibit D) as modified to allow such
Transferee to own stock or other equity interests in a tenant of the Company or
its Subsidiaries to the extent such ownership would not result in (i) the
Company or any of its REIT Subsidiaries other than GGP-Natick Trust or GGP
Ivanhoe, Inc. recognizing more than $1 million of “related


 


5

















 


party rent” each year or (ii) GGP-Natick Trust or
GGP Ivanhoe, Inc. recognizing more than $100,000 of “related party rent”
each year;


 


(ii)           to one or more underwriters or initial purchasers
acting in their capacity as such in a manner not intended to circumvent the restrictions
contained in 2.2(a);


 


(iii)          in a sale in the public market, in accordance with Rule 144,
including the volume and manner of sale limitations set forth therein;


 


(iv)          in any Merger Transaction (other than a transaction
contemplated by Section 2.2(b)(v) below) or transaction
contemplated by clause (iii) of the definition of Change of Control (A) in
which (in either case) no Investor Party is the acquiror or part of the
acquiring group or is proposed to be combined with the Company and (B) that
has been approved by the Board and a majority of the stockholders (it being
understood that this clause (iv) does not affect the agreement of the
parties under Sections 1.1(e) and (f));


 


(v)           in connection with a tender or exchange offer that (A) is
not solicited by any Investor Party (unless such transaction was approved in
accordance with Section 2.1(b)(ii)) and in which all holders of
Common Stock are offered the opportunity to sell shares of Common Stock and (B) complies
with applicable securities laws, including Rule 14d-10 promulgated under
the Exchange Act; and


 


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


 


(c)           No Transfer under Section 2.2(b)(i) shall
be valid unless and until a Transferee Agreement has been executed by the
Transferee and delivered to the Company. 
For the purpose of this Agreement a “Transferee Agreement” executed by a
Transferee means an agreement substantially in the form of this Agreement or in
such other form as is reasonably satisfactory to the Company except that:


 


(i)            notwithstanding Section 1.1(c), in
connection with any stockholder meeting or consent solicitation relating to the
election of members of the Board, such Transferee may vote the shares of Common
Stock that it Beneficially Owns in favor of one director candidate in its sole
and absolute discretion and regarding any other director candidates in such
election must vote in proportion to Votes Cast;(3)


 


(ii)           “Investor” shall be defined to mean such Transferee;
and


 


(iii)          any obligation on the part of Investor hereunder to
cause the Investor Parties to take any action or refrain from taking any action
shall only apply to the Investor Parties controlled by the Transferee and the
Transferee Agreement shall provide


 






(3) In the Fairholme
Non-Control Agreement, this clause will be expanded to say that the restriction
in 1.1(c) will apply only to votes for or against directors and not votes
on other matters.


 


6

















 


that the Transferee shall use all reasonable efforts
to cause Affiliates that the Transferee does not control to take or refrain
from taking the action that it is otherwise required to cause under this Agreement.


 


ARTICLE
III


 


TERMINATION


 


SECTION 3.1            Termination of Agreement. 
This Agreement may be terminated as follows (the date of such
termination, the “Termination Date”)


 


(a)           if Investor and the Company mutually agree to
terminate this Agreement, but only if the Disinterested Directors have approved
such termination;


 


(b)           upon five (5) days notice by the Investor, at any time after
(i) the Other Stockholders Beneficially Own more than seventy percent (70%) of the then-outstanding Common Stock and (ii) the
Investor Parties Beneficially Own less than fifteen percent (15%) of the then-outstanding Common Stock on a Fully
Diluted Basis;


 


(c)           without any further action by the parties hereto, if
Investor and the Investor Parties Beneficially Own less than ten percent (10%) of the then-outstanding Common Stock on a Fully
Diluted Basis;


 


(d)           without any other action by the parties hereto, upon
the consummation of a Change of Control not involving Investor or any Investor
Party as a purchaser of any direct or indirect interest in the Company or any
of its assets or properties; provided that the Investor Parties shall
not have violated this Agreement in connection with any transaction under this
clause; and


 


(e)           without any other action by the parties hereto, upon
the consummation of: (i) a sale of all or substantially all of the assets
the Company and its Subsidiaries (determined on a consolidated basis), in one
transaction or series of related transactions; or (ii) the acquisition (by
purchase, merger or otherwise) by any Person or Group of Beneficial Ownership
of voting securities of the Company entitling such Person or Group to exercise ninety percent (90%) or more of the total voting power of all outstanding
securities entitled to vote generally in elections of directors of the Company;
provided that the Investor Parties shall not have violated this
Agreement in connection with any transaction under the preceding clauses (i) and
(ii).


 


SECTION 3.2            Procedure upon Termination. 
In the event of termination pursuant to Section 3.1, this
Agreement shall terminate on the Termination Date without further action by
Investor and the Company.


 


SECTION 3.3            Effect of Termination.  In the event
that this Agreement is validly terminated as provided in this Article III,
then each of the parties hereto shall be relieved of their duties and
obligations arising under this Agreement after the date of such termination and
such termination shall be without liability to the other party; provided,
however, that Article V shall survive any such termination
and shall be enforceable hereunder; provided further, however,
that


 


7

















 


nothing in this Section 3.3 shall relieve
any party hereto of any liability for a breach of a representation, warranty or
covenant in this Agreement prior to the Termination Date.


 


ARTICLE
IV


 


DEFINITIONS


 


SECTION 4.1            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)        “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 Agreement, “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.


 


(b)        “Beneficial Ownership” by a Person
of any securities means “beneficial ownership” as used for purposes of Rule 13d-3
adopted by the SEC under the Exchange Act; provided, however, to the extent the
term “Beneficial Ownership” is used in connection with any obligation on the
part of an Investor Party to vote, or direct the vote, of shares of Common
Stock, “Beneficial Ownership” by a Person of any securities shall be deemed to
refer solely to those securities with respect to which such Person possesses
the power to vote or direct the vote. 
The term “Beneficially Own” shall have a correlative meaning.


 


(c)        “Board” means the Board of
Directors of the Company.


 


(d)        “Brookfield Non-Control Agreement”
means the Non-Control Agreement, dated as of the date hereof, among the Company
and [insert names of Brookfield purchasers].


 


(e)        “Business
Day” means any
day other than (i) a Saturday, (ii) a Sunday, or (iii) any day
on which commercial banks in New York, New York are required or authorized to
close by law or executive order.


 


(f)         “Change of Control” means any
transaction involving (i) a Merger Transaction, (ii) a sale of all or
substantially all of the assets the Company and its Subsidiaries (determined on
a consolidated basis), in one transaction or series of related transactions, or
(iii) the consolidation, merger, amalgamation, reorganization (other than
pursuant to the Plan contemplated by the Investment Agreement) of the Company
or a similar transaction in which the Company is combined with another Person,
unless shares of Common Stock held by holders who are not affiliated with the
Company or any entity acquiring the Company remain unchanged or are exchanged
for, converted into or constitute solely (except to the extent of applicable
appraisal rights or cash received in lieu of fractional shares) the right to
receive as consideration Public Stock and the Persons or Group who beneficially
own the outstanding Common Stock of the Company immediately before consummation
of the transaction beneficially own more than 50% (by voting


 


8

















 


power) of the
outstanding voting stock of the combined or surviving entity or new parent
immediately thereafter.


 


(g)        “Charter” means [the Certificate
of Incorporation of the Company dated as of xxxxxx xx, 2010][Insert Charter
adopted pursuant to Section [      ] of the
Investment Agreement.]


 


(h)        “Common Stock”  means the common stock, par value $0.01 per
share, of the Company, as authorized by the Charter as of the Effective Date,
and any successor security as provided by Section 5.11.


 


(i)         “Disinterested Director” shall mean (i) with
respect to an Affiliated Transaction or potential Affiliated Transaction, a
director who (A) is not Affiliated with, and was not nominated by, any
Investor Party that is a participant in such transaction or potential
transaction and (B) who has no personal financial interest in the
transaction (other than the same interest, if a stockholder of the Company, as
the other stockholders of the Company) and (ii) with respect to any matter
other than an Affiliated Transaction, a director who is not Affiliated with, and
was not nominated by, any Investor Party.


 


(j)         “Economic Ownership” by a Person
of any securities includes ownership by any Person who, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise,
has (i) “beneficial ownership” as defined in Rule 13d-3 adopted by
the SEC under the Exchange Act or (ii) economic interest in such security
as a result of any cash-settled total return swap transaction or any other
swap, other derivative or “synthetic” ownership arrangement (in which case the
number of securities with respect to which such Person has Economic Ownership
shall be determined by the Company in it reasonable judgment based on such
Person’s equivalent net long position); provided, however, that
for purposes of determining Economic Ownership, a Person shall be deemed to be
the Economic Owner of any securities which may be acquired by such Person
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise
(irrespective of whether the right to acquire such securities is exercisable
immediately or only after the passage of time, including the passage of time in
excess of sixty (60) days, the satisfaction of any conditions, the occurrence
of any event or any combination of the foregoing).  For purposes of this Agreement, a Person
shall be deemed to be the Economic Owner of any securities Economically Owned
by any Group of which such Person is or becomes a member.  The term “Economically Own” shall have
a correlative meaning.


 


(k)        “Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor federal statute,
and the rules and regulations of the SEC promulgated thereunder, all as
the same may be amended and shall be in effect from time to time.


 


(l)         “Fair Market
Value” means, with respect to each share of Public Stock,  the average of the daily volume weighted average
prices per share of such Public Stock for the ten consecutive trading days
immediately preceding the day as of which Fair Market Value is being
determined, as reported on the New York Stock Exchange, or if such shares


 


9
















 


are not listed on
the New York Stock Exchange, as reported by the principal U.S. national or
regional securities exchange or quotation system on which such shares are then
listed or quoted; provided, however, that in the absence of such
listing or quotations, the Fair Market Value of such shares shall be the fair
market value per share as determined by an Independent Financial Expert
appointed for such purpose, using one or more valuation methods that the
Independent Financial Expert in its best professional judgment determines to be
most appropriate, assuming such shares are fully distributed and are to be sold
in an arm’s-length transaction and there was no compulsion on the part of any
party to such sale to buy or sell and taking into account all relevant factors.


 


(m)       [“Fairholme Non-Control Agreement” means the
Non-Control Agreement, dated as of the date hereof, among the Company and
[insert name of Fairholme purchaser].]


 


(n)        “Fully Diluted Basis” means all
outstanding shares of the Common Stock assuming the exercise of all outstanding
Share Equivalents, without regard to any restrictions or conditions with
respect to the exercisability of such Share Equivalents.


 


(o)        “Governmental
Entity” means any (i) nation, region, state, province, county, city,
town, village, district or other jurisdiction, (ii) federal, state, local,
municipal, foreign or other government, (iii) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, court or tribunal, or other entity), (iv) multinational
organization or body or (v) 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.


 


(p)        “Group” has the meaning assigned
to it in Section 13(d)(3) of the Exchange Act and Rule 13d-5
thereunder.


 


(q)        “Independent Financial Expert”
means a nationally recognized financial advisory firm approved by a majority of
the Disinterested Directors.


 


(r)         “Investor Investment Advisor”
means any independently operated business unit of any Affiliate of Investor
that holds shares of Common Stock (i) in trust for the benefit of persons
other than any Investor Party, (ii) in mutual funds, open- or closed-end
investment funds or other pooled investment vehicles sponsored, managed or
advised or subadvised by such Investor Investment Advisor, (iii) as agent
and not principal, or (iv) in any other case where such Investor
Investment Advisor is disaggregated from Investor for the purposes of Section 13(d) of
the Exchange Act; provided, however, that  (A) in
each case, such shares of Common Stock were acquired in the ordinary course of
business of the Investor Investment Advisor’s respective investment management
or securities business and not with the intent or purpose on the part of
Investor or the Investor Parties of influencing control of the Company or
avoiding the provisions of this Agreement and (B) where appropriate, “Chinese
walls” or other informational barriers and other procedures have been
established.  For avoidance of doubt, for
purposes of this Agreement shares of Common Stock held by an Investor
Investment Advisor shall not be deemed to be Beneficially Owned by Investor or
the Investor Parties.


 


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(s)        “Investor Parties” means Investor and its
Affiliates; provided, however, that none of the Company, any Subsidiary of the
Company or any Investor Investment Advisor shall be deemed to be an Investor
Party.


 


(t)         “Large Stockholder”
means a Person that is the Beneficial Owner of more than ten percent (10%) of
the outstanding shares of Common Stock on a Fully Diluted Basis.


 


(u)        “Law” means any statutes, laws (including
common law), rules, ordinances, regulations, codes, orders, judgments,
decisions, injunctions, writs, decrees, applicable to the Company, Common Stock
or Investor Parties.


 


(v)        “Merger
Transaction” means any
transaction involving the acquisition (by purchase, merger or otherwise) by any
Person or Group of Beneficial Ownership of voting securities of the Company
entitling such Person or Group to exercise a majority of the total voting power
of all outstanding securities entitled to vote generally in elections of
directors of the Company.


 


(w)       “Ordinary Course of Business” means the
ordinary and usual course of day-to-day operations of the business of the
Company consistent with past practice.


 


(x)        “Other Stockholder” means, as of
the date of the action in question, any Person not Affiliated with Brookfield
Asset Management, Inc., Fairholme Capital Management LLC, Pershing Capital
Management L.P., any transferee who is a party to a transferee agreement under
the Brookfield Non-Control Agreement, the [Fairholme][Pershing Square]
Non-Control Agreement or this Agreement or any of their respective Affiliates.


 


(y)        “Ownership Cap” means the lower of (i) [twenty-five
percent (25%)][thirty percent (30%)](4) of the then-outstanding Common Stock on a Fully
Diluted Basis and (ii) the sum of five percent (5%) and the percentage of the outstanding Common Stock on
a Fully Diluted Basis that the Investor Parties Economically Own as of the
Effective Date.


 


(z)        [“Pershing
Square Non-Control Agreement” means the Non-Control Agreement, dated as of the date
hereof, among the Company and [insert names of Pershing Square purchasers].]


 


(aa)      “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.


 






(4) Note to Draft: 25% for the Pershing Square
Non-Control Agreement and 30% for the Fairholme Non-Control Agreement.


 


11

















 


(bb)     “Public Stock” means common stock listed on a
recognized U.S. national securities exchange with an aggregate market
capitalization (held by non-Affiliates of the issuer) in excess of $1 billion
in Fair Market Value.


 


(cc)      “Rule 144” means Rule 144 promulgated
by the SEC under the Securities Act, or any successor rule or regulation
hereafter adopted by the SEC, as the same may be amended and shall be in effect
from time to time.


 


(dd)     “SEC” means the Securities and Exchange
Commission or any other federal agency then administering the Exchange Act, the
Securities Act and other federal securities laws.


 


(ee)      “Securities Act” means the Securities Act of
1933, as amended, or any successor federal statute, and the rules and
regulations of the SEC promulgated thereunder, all as the same may be amended
and shall be in effect from time to time.


 


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


 


(gg)     “Subsidiary”
means, with respect to a Person, any corporation, limited liability company,
partnership, trust or other entity of which such Person owns (either alone,
directly, or indirectly through, or together with, one or more of its
Subsidiaries) 50% or more of the equity interests the holder of which is
generally entitled to vote for the election of the board of directors or
governing body of such corporation, limited liability company, partnership,
trust or other entity.


 


(hh)     “Transaction Documents” means, individually or
collectively, the Investment Agreement or the Warrant.


 


(ii)        “Transferee” means any proposed
transferee of securities pursuant to Sections 2.2(b)(i) or 2.2(b)(vi).


 


(jj)        “Votes Cast” means the
aggregate number of shares of Common Stock that are properly voted for or
against any action to be taken by stockholders, excluding any shares to the extent the holder of such shares
is contractually required to vote in proportion of the total number of votes
cast pursuant to this Agreement, the Brookfield Non-Control
Agreement, the [Fairholme][Pershing Square] Non-Control Agreement or any
transferee agreement executed hereunder or thereunder.


 


(kk)      “Warrants” means the New Warrants (as defined
in the Investment Agreement).


 


12

















 


ARTICLE V


 


MISCELLANEOUS


 


SECTION 5.1            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:  (a) on the date delivered, if personally
delivered; (b) 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 (c) 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:


 


If
to Investor, to:


 


[insert name, address and contact details of Investor]


 


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


 


[insert name, address and contact details of cc]


 


If to Company, to:


 


General Growth Properties, Inc.


110 N. Wacker Drive


Chicago, IL 60606


Attention: Ronald L. Gern, Esq.


Facsimile: 312-960-5485


 


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


 


Weil, Gotshal & Manges LLP


767 Fifth Avenue


New York, NY 10153


Attention:         Marcia L. Goldstein, Esq.


Frederick S.
Green, Esq.


Gary T. Holtzer


Malcolm E.
Landau


Facsimile: (212) 310-8007


 


SECTION 5.2            Assignment; No 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.  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.


 


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SECTION 5.3            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 hereto and supersedes all prior agreements, arrangements or
understandings, whether written or oral, between the parties hereto with
respect to the subject matter of this Agreement.


 


SECTION 5.4            Governing Law; Venue.  THIS AGREEMENT,
AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE
BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE NEGOTIATION,
EXECUTION OR PERFORMANCE OF THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE.  BOTH PARTIES HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF, AND VENUE IN, DELAWARE AND WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS.


 


SECTION 5.5            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 hereto, 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 5.6            Expenses.  Except as
otherwise provided in this Agreement, Investor and the Company shall each bear
its own expenses 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 5.7            Waivers and Amendments.  Subject to Section 5.2,
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 Investor and the Company (with the approval of a
majority of the Disinterested Directors) 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 5.8            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.


 


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(b)        Unless the context otherwise requires, as
used in this Agreement:  (i) “or”
shall mean “and/or”; (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; and (vi) the terms “Article”
and “Section” refer to the specified Article or Section of this
Agreement.


 


SECTION 5.9            Severability.  If any term
or other provision of this Agreement is invalid, illegal, or incapable of being
enforced by any law or public policy, all other terms or provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party.  Upon such determination that any term or
other provision is invalid, illegal, or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties hereto as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.


 


SECTION 5.10          Equitable Relief.  It is hereby acknowledged that irreparable harm would
occur in the event that any of the provisions of this Agreement were not performed
fully by the parties hereto in accordance with the terms specified herein, and
that monetary damages are an inadequate remedy for breach of this Agreement
because of the difficulty of ascertaining and quantifying the amount of damage
that will be suffered by the parties hereto relying hereon in the event that
the undertakings and provisions contained in this Agreement were breached or
violated.  Accordingly, each party hereto
hereby agrees that each other party hereto shall be entitled to an injunction or
injunctions to restrain, enjoin and prevent breaches of the undertakings and
provisions hereof and to enforce specifically the undertakings and provisions
hereof in any court of the United States or any state having jurisdiction over
the matter; it being understood that such remedies shall be in addition to, and
not in lieu of, any other rights and remedies available at law or in equity.


 


SECTION 5.11          Successor Securities.  The
provisions of this Agreement pertaining to shares of Common Stock shall apply
to all shares of Common Stock Beneficially Owned by any Investor Party and any
voting equity securities of the Company, regardless of class, series,
designation or par value, that are issued as a dividend on or in any other
distribution in respect of, or as a result of a reclassification (including a
change in par value) in respect of, shares of Common Stock or other shares of
the Company which, as provided by this section, are considered as shares of
Common Stock for purposes of this Agreement and shall also apply to any voting
equity security issued by any company that succeeds, by merger, consolidation,
a share exchange, a reorganization of the Company or any similar transaction,
to all or substantially all the business of the Company, or to the ownership
thereof, if such security was issued in exchange for or otherwise as
consideration for or in respect of shares of Common Stock (or other shares
considered as shares of Common Stock, as provided by this definition) in
connection with such succession transaction.


 


SECTION 5.12          Voting Procedures.  If, in
connection with any stockholder meeting or consent solicitation, Investor or
the Investor Parties are required under the terms of this


 


15

















 


Agreement to vote in proportion to the Unaffiliated
Stockholders, then the parties shall cooperate to determine appropriate
procedures and mechanics to facilitate such proportionate voting.


 


**
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK**


 


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


 


 


	
   

  	
  GENERAL GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [INSERT NAME OF INVESTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signature
Page to Non-Control Agreement]


 
















 


EXHIBIT N –
CERTAIN REIT INVESTORS