Exhibit
10.6


 


EXECUTION
COPY


 


FOURTH
AMENDMENT TO RIGHTS AGREEMENT


 


FOURTH AMENDMENT (this “Amendment”), dated as of May 10,
2010, between General Growth Properties, Inc., a Delaware corporation (the
“Company”), and BNY Mellon Investor Services LLC, a New Jersey limited
liability company (the “Rights Agent”).


 


WITNESSETH:


 


WHEREAS, the Company and the predecessor Rights
Agent entered into the Rights Agreement, dated as of November 18, 1998, as
amended by the First Amendment to the Rights Agreement, dated as of November 10,
1999, the Second Amendment to the Rights Agreement, dated as of December 31,
2001, and the Third Amendment to the Rights Agreement, dated as of November 18,
2008 (as so amended, the “Rights Agreement”);


 


WHEREAS, the Company is a debtor in possession
in that certain bankruptcy case filed under chapter 11 of title 11 of the
United States Code on April 16, 2009 in the United States Bankruptcy Court
for the Southern District of New York (the “Bankruptcy Court”), Case No. 09-11977
(ALG);


 


WHEREAS, in connection with the Company’s
efforts to recapitalize and emerge from bankruptcy, and subject to approval by
the Bankruptcy Court, the Company entered into the Cornerstone Agreement, the
Fairholme Agreement and the Pershing Agreement (each as defined below, and collectively, the “Investment
Agreements”) each of which provides for, among other things, the entry by
the Company into the Warrant and Registration Rights Agreement, dated as of May 10,
2010, by and between the Company and Mellon Investor Services LLC, as it may be
further amended (the “Warrant Agreement”) granting warrants to purchase
Common Shares (as defined in the Rights Agreement) upon the exercise of
warrants issued under the Warrant Agreement;


 


WHEREAS, pursuant to Section 27 of the Rights
Agreement, the Company may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of such Section; and


 


WHEREAS, the Board of Directors of the Company
has determined that it is in the best interests of the Company and its stockholders
that the Rights Agreement be amended as provided herein in connection with the
Company entering into the Investment Agreements and Warrant Agreement to exempt
from the application of the Rights Agreement (i) the acquisition of the
warrants and the underlying securities pursuant to the terms of the Warrant
Agreement, (ii) the effect of any antidilution adjustments to the warrants
pursuant to the terms of the Warrant Agreement, (iii) the ownership of any
shares of common stock (the “New Common Stock”) of a new company that will
succeed the Company upon consummation of the Plan (as defined below) (the “New
Company”) by each of the REP Holder, the Brookfield Holders, Pershing
Holders and the Fairholme Holders (each as defined below) if such shares of


 

















 


New Common Stock are deemed to be owned by any of
these holders by no action of their own and (iv) up to a certain amount of
additional Common Shares as set forth below.


 


NOW
THEREFORE, in
consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:


 


Section 1.           Definitions. Capitalized terms used
herein without definition shall have the meanings specified in the Rights
Agreement.


 


Section 2.           Section 2. Amendments.  The Rights Agreement shall be amended as
follows:


 


(a) The definition
of “Acquiring Person” in the Rights Agreement shall be amended by deleting
the word “and” between the words “plus 1%” and “(ii) a
Homart Holder,”


 


(b) The definition
of “Acquiring Person” in the Rights Agreement shall be further amended
by inserting new clauses (iii), (iv) and (v) after the words “plus
1%” in clause (ii), and the remaining portion of the definition thereafter shall
read in its entirety as follows:


 


“(iii) the REP
Holder or all of the Brookfield Holders on an aggregate basis upon a valid
assignment or transfer from the REP Holder, the greater of: (A) 15% and (B) Beneficial
Ownership of such percentage of the then outstanding Common Shares of the
Company or New Common Stock, as applicable, held or issued as (1) warrants
to purchase Common Shares (the “Cornerstone Warrants”) pursuant to the
terms of, and subject to the restrictions contained in, (x) the
Cornerstone Investment Agreement, dated as of March 31, 2010, by and
between the Company and REP Investments LLC, as amended by Amendment No. 1
to the Cornerstone Investment Agreement, dated as of May 3, 2010, as it
may be further amended (the “Cornerstone Agreement”) and (y) the Warrant
Agreement, (2) Common Shares upon the exercise of the Cornerstone Warrants
pursuant to the terms of, and subject to restrictions contained in, the
Cornerstone Agreement and the Warrant Agreement, (3) warrants to purchase
Common Shares upon any antidilution adjustment of the Cornerstone Warrants
pursuant to the terms of, and subject to restrictions contained in, the
Cornerstone Agreement and the Warrant Agreement and (4) any shares of New
Common Stock that the REP Holder or all of the Brookfield Holders upon a valid
assignment or transfer from the REP Holder may be deemed to own by no actions
of its own, (iv) all of the Brookfield Holders on an aggregate basis, the
greater of: (A) 15% and (B) Beneficial Ownership of such percentage
of the then outstanding Common Shares of the Company or New Common Stock, as
applicable, held or issued as (1) shares of New Common Stock that the Brookfield
Holders


 


2

















 


may be deemed to own by
no actions of their own and (2) up to an additional 2.5%  of the issued and outstanding Common Shares, (v) all
of the Pershing Holders on an aggregate basis, the greater of: (A) 15% and
(B) Beneficial Ownership of such percentage of the then outstanding Common
Shares of the Company or New Common Stock, as applicable, held or issued as (1) warrants
to purchase Common Shares (the “Pershing Warrants”) pursuant to the
terms of, and subject to the restrictions contained in, (x) the Stock
Purchase Agreement, dated as of March 31, 2010, as amended by Amendment No. 1
to the Stock Purchase Agreement, dated as of May 3, 2010, and as it may be
further amended (the “Pershing Agreement”), by and between the Company
and Pershing Square Capital Management, L.P. on behalf of Pershing Square,
L.P., Pershing Square II, L.P., Pershing Square International, Ltd. and
Pershing Square International V, Ltd. (collectively, “Pershing”) and (y) the
Warrant Agreement, (2) Common Shares upon the exercise of the Pershing
Warrants pursuant to the terms of, and subject to restrictions contained in,
the Pershing Agreement and the Warrant Agreement, and (3) warrants to
purchase Common Shares upon any antidilution adjustment of the Pershing Warrants
pursuant to the terms of, and subject to restrictions contained in, the
Pershing Agreement and the Warrant Agreement, (4) any shares of New Common
Stock that the Pershing Holders may be deemed to own by no actions of their own
and (5) up to an additional 0.714% of the issued and outstanding Common
Shares and (vi) all of the Fairholme Holders on an aggregate basis, the
greater of: (A) 15% and (B) Beneficial Ownership of such percentage
of the then outstanding Common Shares of the Company or New Common Stock, as
applicable, held or issued as (1) warrants to purchase Common Shares (the “Fairholme
Warrants”) pursuant to the terms of, and subject to the restrictions
contained in, (x) the Stock Purchase Agreement, dated as of March 31,
2010, as amended by Amendment No. 1 to the Stock Purchase Agreement, dated
as of May 3, 2010, and as it may be further amended (the “Fairholme
Agreement”), by and between the Company and The Fairholme Fund, a series of
Fairholme Funds, Inc., and Fairholme Focused Income Fund, a series of
Fairholme Funds, Inc. (collectively, “Fairholme”) and (y) the
Warrant Agreement, (2) Common Shares upon exercise of the Fairholme
Warrants pursuant to the terms of, and subject to restrictions contained in,
the Fairholme Agreement and the Warrant Agreement, (3) warrants to
purchase Common Shares upon any antidilution adjustment of the Fairholme
Warrants pursuant to the terms of, and subject to restrictions contained in,
the Fairholme Agreement and the Warrant Agreement, (4) any shares of New
Common Stock that the Fairholme Holders may be deemed to own by no actions of
their own and (5) up to an additional 1.786% of the issued and outstanding
Common Shares, (the limits on ownership described in clauses (i), (ii), (iii), (iv),
(v) and (vi) being referred to as the “Grandfathered Limits”),
but shall not include (1) the


 


3

















 


Company, (2) any
Subsidiary of the Company, (3) any employee benefit plan of the Company or
any Subsidiary of the Company, or (4) any entity holding Common Shares for
or pursuant to the terms of any such employee benefit plan.  Notwithstanding the foregoing, (x) no
Person shall become an “Acquiring Person” as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by
such Person to 15% (or such other percentage as would otherwise result in such
person becoming an Acquiring Person) or more of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall so become
the Beneficial Owner of 15% (or such other percentage) or more of the Common Shares
of the Company then outstanding by reason of an acquisition of Common Shares by
the Company and shall, after such share purchases by the Company, become the
Beneficial Owner of an additional percentage of the outstanding Common Shares
of the Company in excess of the additional percentage permitted to be acquired
by such Person, then such Person shall be deemed to be an “Acquiring Person”;
and (y) if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an “Acquiring Person,” as defined pursuant
to the foregoing provisions of this paragraph, has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an “Acquiring Person,” as
defined pursuant to the foregoing provisions of this paragraph, then such
Person shall not be deemed to have become an “Acquiring Person” for any
purposes of this Agreement.”


 


(c) The definition
of “Grandfathered Stockholders” in the Rights Agreement shall be amended
by deleting the word “and” between the words “(each, a “Bucksbaum
Holder”);” and “(ii) the holders of shares,” and inserting a “;”
in replacement of the word “and”


 


(d) The definition
of “Grandfathered Stockholders” in the Rights Agreement shall be further
amended by deleting the “.” at the end of such definition and adding new
clauses (iii), (iv), (v) and (vi) which shall read in their entirety
as follows:


 


“(iii) REP
Investments LLC, a Delaware limited liability company (the “REP Holder”);
(iv) all of the Brookfield Consortium Members (as defined in the
Cornerstone Agreement) (the “Brookfield Holders”) (v) Pershing
Square, L.P., a Delaware limited partnership, Pershing Square II, L.P., a
Delaware limited partnership, Pershing Square International, Ltd., a Cayman
Islands exempted company, and Pershing Square International V, Ltd., a Cayman
Islands exempted company, and the investment manager and controlled Affiliates
(controlled Affiliates shall have the meaning in the Pershing Agreement) of each
of Pershing Square, L.P., Pershing


 


4

















 


Square II, L.P., Pershing
Square International, Ltd. and Pershing Square International V, Ltd. (each, a “Pershing
Holder” and collectively, the “Pershing Holders”) and (vi) The
Fairholme Fund, a series of Fairholme Funds, Inc., a Maryland corporation,
Fairholme Focused Income Fund, a series of Fairholme Funds, Inc., and the investment
manager and controlled Affiliates (controlled Affiliates shall have the meaning
in the Fairholme Agreement) of each of The Fairholme Fund and Fairholme Focused
Income Fund (each, a “Fairholme Holder” and collectively, the “Fairholme
Holders”).”


 


(e) The definition
of “Plan” in the Rights Agreement shall have the meaning set forth in
the Cornerstone Agreement.


 


(f) The definition
of “Shares Acquisition Date” in the Rights Agreement shall be amended by
adding a sentence at the end of the current definition such that the definition
of Shares Acquisition Date reads in its entirety as follows:


 


“ “Shares Acquisition Date” shall mean the earlier of the date of (i) the
public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such or (ii) the public disclosure of facts by the
Company or an Acquiring Person indicating that an Acquiring Person has become
such.  For the avoidance of doubt,
neither (a) the acquisition of the Cornerstone Warrants, Pershing Warrants
or Fairholme Warrants by the REP Holder or the Brookfield Holders upon a valid assignment or transfer from
the REP Holder, any of the Pershing Holders or any of the
Fairholme Holders, (b) the acquisition of Common Shares through the
exercise of the Cornerstone Warrants, Pershing Warrants or Fairholme Warrants
by the REP Holder or the Brookfield Holders upon a valid assignment or transfer from the REP
Holder, any of the Pershing Holders or any of the Fairholme Holders, respectively,
nor (c) the acquisition of up to an additional 2.5% of the issued and
outstanding Common Shares by the Brookfield Holders, the acquisition of up to
0.714% of the issued and outstanding Common Shares by the Pershing Holders, nor
the acquisition of up to an additional 1.786% of the issued and outstanding
Common Shares by the Fairholme Holders shall result in a Shares Acquisition
Date.”


 


(g) Section 3(a) of
the Rights Agreement shall be amended by replacing the term “Grandfathered
Shareholders” with
the term “Grandfathered Stockholders” in the sentence thereof.


 


(h) Section 3(a) of
the Rights Agreement shall be further amended by adding the following two sentences
at the end of this section:


 


5

















 


“For the avoidance of doubt, because the transactions specifically
contemplated by the Cornerstone Agreement, the Fairholme Agreement, the
Pershing Agreement and the Warrant Agreement shall not result in a Shares
Acquisition Date, neither (a) the acquisition of the Cornerstone Warrants,
Pershing Warrants or Fairholme Warrants by the REP Holder, the Pershing Holders
or the Fairholme Holders, (b) the acquisition of Common Shares through the
exercise of the Cornerstone Warrants, Pershing Warrants or Fairholme Warrants
by the REP Holder, any of the Pershing Holders or any of the Fairholme Holders,
respectively, nor (c) the acquisition of up to an additional 2.5% of the
issued and outstanding Common Shares by the Brookfield Holders, the acquisition
of up to 0.714% of the issued and outstanding Common Shares by the Pershing
Holders, nor the acquisition of up to an additional 1.786% of the issued and
outstanding Common Shares by the Fairholme Holders, shall result in a
Distribution Date.  For the further
avoidance of doubt, because the transactions specifically contemplated by the
Cornerstone Agreement, the Fairholme Agreement, the Pershing Agreement and the
Warrant Agreement shall not result in a Distribution Date, neither (a) the
acquisition of the Cornerstone Warrants, Pershing Warrants or Fairholme
Warrants by the REP Holder, any of the Pershing Holders or any of the Fairholme
Holders, (b) the acquisition of Common Shares through the exercise of the
Cornerstone Warrants, Pershing Warrants or Fairholme Warrants by the REP
Holder, any of the Pershing Holders or any of the Fairholme Holders, respectively,
nor (c) the acquisition of up to an additional 2.5% of the issued and
outstanding Common Shares by the Brookfield Holders, the acquisition of up to
0.714% of the issued and outstanding Common Shares by the Pershing Holders, nor
the acquisition of up to an additional 1.786% of the issued and outstanding
Common Shares by the Fairholme Holders, shall result in the issuance of Right
Certificates that are separate from the certificates for Common Shares.”


 


Section 3.           Governing Law. This Amendment shall
be deemed to be a contract made under the laws of the State of Delaware and for
all purposes shall be governed and construed in accordance with the laws of
such State applicable to contracts to be made and performed entirely within
such State.


 


Section 4.           Counterparts. This Amendment may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.


 


Section 5.           Ratification. Except as expressly
provided herein, this Amendment shall not by implication or otherwise alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Rights Agreement, all of which are
ratified and confirmed in all respects and shall continue in 


 


6

















 


full force and effect.  Without
limiting the foregoing, the Rights Agent shall not be subject to, nor required
to interpret or comply with, or determine if any other Person has complied
with, the Investment Agreements or the Warrant Agreement, even though reference
thereto may be made in this Amendment.


 


7

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be hereunder affixed and
attested, all as of the day and year first above written.


 


 


	
  Attest:

  	
  GENERAL GROWTH
  PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: Linda J. Wight

  	
  By: Adam Metz

  
	
  Name: Linda J. Wight

  	
  Name: Adam Metz

  
	
  Title: Vice President &
  Assistant Secretary

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
  BNY MELLON INVESTOR
  SERVICES LLC, as Rights Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: George Drake

  	
  By: Thomas Blatchford

  
	
  Name: George Drake

  	
  Name: Thomas Blatchford

  
	
  Title: Relationship
  Manager

  	
  Title: Vice President

  



 


[SIGNATURE PAGE TO
FOURTH AMENDMENT TO RIGHTS AGREEMENT]