PORTION OF
THE ESCROW AMOUNT IN AN AMOUNT EQUAL TO THE FACE AMOUNT OF THE ACCEPTABLE LC
PLUS THE EXCESS OF THE ESCROW AMOUNT OVER THE COMMITMENT AMOUNT ON THE DATE OF
DISTRIBUTION FROM THE ESCROW ACCOUNT IN ACCORDANCE WITH THE TERMS HEREOF.
IMMEDIATELY AFTER GIVING EFFECT TO SUCH A PAYMENT, THE COMMITMENT AMOUNT SHALL
BE REDUCED BY THE FULL FACE AMOUNT OF SUCH ACCEPTABLE LC.
AS USED HEREIN,
"ACCEPTABLE LC" SHALL MEAN A LETTER OF CREDIT IN FAVOR OF REP, WHICH LETTER OF
CREDIT (I) SHALL, AT THE TIME OF ISSUANCE, BE ISSUED BY A UNITED STATES OFFICE
OF A NATIONAL BANK RATED A OR BETTER BY STANDARD & POOR'S OR MOODY'S, HAVING
TOTAL CAPITAL AND SURPLUS IN EXCESS OF $10,000,000,000, (II) SHALL BE UPON SUCH
TERMS AS ARE ACCEPTABLE AND CONSENTED TO IN WRITING BY EACH OF REP, GGP AND
INVESTOR (IN EACH CASE ACTING REASONABLY), PROVIDED THAT (V) GGP SHALL HAVE
THIRD PARTY BENEFICIARY RIGHTS TO ENFORCE REP'S RIGHTS UNDER SUCH ACCEPTABLE LC
CONSISTENT WITH ITS RIGHTS HEREUNDER, (W) THE PRINCIPAL AMOUNT OF SUCH
ACCEPTABLE LC SHALL EQUAL THE COMMITMENT AMOUNT, (X) THE CONDITIONS TO DRAWDOWN
ARE EQUIVALENT TO THE PROVISIONS SET FORTH IN SECTION 4(C) HEREOF, (Y) THE
ACCEPTABLE LC MAY NOT BE AMENDED OR REVOKED BY THE PARTIES THERETO WITHOUT THE
PRIOR WRITTEN CONSENT OF REP, GGP AND INVESTOR AND (Z) THE TERM OF SUCH
ACCEPTABLE LC SHALL NOT EXPIRE PRIOR TO THE RELEASE DATE.
NO FEES AND EXPENSES
OF THE ACCEPTABLE LC OR RELATED TO THE REPLACEMENT OF THE ESCROW AMOUNT SHALL BE
PAYABLE OUT OF THE COMMITMENT AMOUNT.
3
(C)
IF ON OR PRIOR TO THE RELEASE TIME, REP OR
GGP DELIVERS A WRITTEN CERTIFICATION IN ACCORDANCE WITH THIS SECTION 4(C), IN
SUBSTANTIALLY THE FORM OF EXHIBIT V HERETO (THE "CLOSING FUNDING
CERTIFICATION"), TO THE ESCROW AGENT (WITH A COPY OF SUCH CLOSING FUNDING
CERTIFICATION TO BE PROVIDED TO EACH OTHER PARTY HERETO IN ACCORDANCE WITH THE
TERMS OF SECTION 9 HEREOF), THE ESCROW AGENT SHALL PAY TO REP THE COMMITMENT
AMOUNT FROM THE ESCROW ACCOUNT UPON RECEIPT OF THE CLOSING FUNDING CERTIFICATION
BY THE ESCROW AGENT IN ACCORDANCE WITH THE TERMS HEREOF.
NEITHER REP NOR GGP
SHALL BE PERMITTED TO DELIVER TO THE ESCROW AGENT THE CLOSING FUNDING
CERTIFICATION UNLESS AND UNTIL SUCH TIME AS REP OR GGP, AS APPLICABLE, CAN AND
DOES (I) CERTIFY THAT THE CONDITIONS SET FORTH IN ARTICLE VII OF THE INVESTMENT
AGREEMENT HAVE BEEN SATISFIED (OTHER THAN THOSE CONDITIONS THAT ARE TO BE
SATISFIED (AND WOULD BE CAPABLE OF BEING SATISFIED) BY ACTION TAKEN AT THE
CLOSING) AND (II) ATTACH TO SUCH CLOSING FUNDING CERTIFICATION A TRUE AND
CORRECT COPY OF (X) AN ORDER OR JUDGMENT OF THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK (THE "BANKRUPTCY COURT") REQUIRING
SPECIFIC PERFORMANCE OF REP'S OBLIGATION TO PURCHASE THE SHARES UNDER THE
INVESTMENT AGREEMENT AND (Y) AN IRREVOCABLE CONFIRMATION OF GGP THAT IF THE
PURCHASE PRICE AND GGO PURCHASE PRICE ARE FUNDED, THEN THE