Exhibit 10.57


 


 


SEPARATION AGREEMENT


 


BY AND BETWEEN


 


GENERAL GROWTH PROPERTIES, INC.


 


AND


 


THE HOWARD HUGHES
CORPORATION


 


Dated [·], 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  2

  
	
  1.1

  	
  Certain
  Definitions

  	
  2

  
	
  1.2

  	
  Other
  Terms

  	
  12

  
	
  ARTICLE II

  	
  THE RESTRUCTURING

  	
  13

  
	
  2.1

  	
  Transfer
  of Assets; Assumption of Liabilities

  	
  13

  
	
  2.2

  	
  Spinco
  Assets

  	
  15

  
	
  2.3

  	
  Spinco
  Liabilities

  	
  16

  
	
  2.4

  	
  Approvals
  and Notifications of Spinco Assets and Liabilities

  	
  18

  
	
  2.5

  	
  Transfer
  of Non-Transferred Assets; Assumption of Non-Transferred Liabilities

  	
  19

  
	
  2.6

  	
  Novation
  of Liabilities

  	
  21

  
	
  2.7

  	
  Termination
  of Agreements and Arrangements

  	
  22

  
	
  2.8

  	
  Bank
  Accounts; Cash Balances

  	
  22

  
	
  2.9

  	
  Replacement
  of Letters of Credit Relating to the Spinco Business

  	
  24

  
	
  2.10

  	
  Payment
  of Certain Ordinary Course, Pre-Petition Obligations

  	
  24

  
	
  2.11

  	
  Payment
  of Certain Legal Fees of K&L Gates LLP

  	
  24

  
	
  2.12

  	
  Mechanics’
  and Materialman’s Liens

  	
  24

  
	
  2.13

  	
  Disclaimer
  of Representations and Warranties

  	
  24

  
	
  ARTICLE III

  	
  THE DISTRIBUTION

  	
  25

  
	
  3.1

  	
  Actions
  on or Prior to the Plan Effective Date

  	
  25

  
	
  3.2

  	
  Conditions
  Precedent to Distribution

  	
  26

  
	
  3.3

  	
  The
  Distribution

  	
  27

  
	
  3.4

  	
  GGP
  Authorization of Agreement

  	
  27

  
	
  ARTICLE IV

  	
  ACCESS TO INFORMATION

  	
  28

  
	
  4.1

  	
  Agreement
  for Exchange of Information; Archives

  	
  28

  
	
  4.2

  	
  Ownership
  of Information

  	
  29

  
	
  4.3

  	
  Compensation
  for Providing Information

  	
  29

  
	
  4.4

  	
  Record
  Retention

  	
  29

  
	
  4.5

  	
  Liability

  	
  30

  
	
  4.6

  	
  Other
  Agreements Providing for Exchange of Information

  	
  30

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  4.7

  	
  Production
  of Witnesses; Records; Cooperation

  	
  31

  
	
  4.8

  	
  Privileged
  Matters

  	
  32

  
	
  ARTICLE V

  	
  RELEASE; INDEMNIFICATION; AND GUARANTEES

  	
  34

  
	
  5.1

  	
  Release
  of Pre-Distribution Claims

  	
  34

  
	
  5.2

  	
  General
  Indemnification by Spinco

  	
  36

  
	
  5.3

  	
  General
  Indemnification by GGP

  	
  37

  
	
  5.4

  	
  Disclosure
  Indemnification

  	
  37

  
	
  5.5

  	
  Indemnification
  Obligations Net of Insurance Proceeds and Other Amounts

  	
  38

  
	
  5.6

  	
  Procedures
  for Indemnification of Third Party Claims

  	
  38

  
	
  5.7

  	
  Additional
  Matters

  	
  40

  
	
  5.8

  	
  Remedies
  Cumulative; Limitations of Liability

  	
  41

  
	
  5.9

  	
  Survival
  of Indemnities

  	
  41

  
	
  5.10

  	
  Guarantees

  	
  41

  
	
  ARTICLE VI

  	
  OTHER AGREEMENTS

  	
  43

  
	
  6.1

  	
  Further
  Assurances

  	
  43

  
	
  6.2

  	
  Confidentiality

  	
  43

  
	
  6.3

  	
  Insurance
  Matters

  	
  46

  
	
  6.4

  	
  Allocation
  of Costs and Expenses

  	
  49

  
	
  6.5

  	
  Litigation;
  Cooperation

  	
  49

  
	
  6.6

  	
  Tax
  Matters

  	
  50

  
	
  6.7

  	
  Employment
  Matters

  	
  51

  
	
  6.8

  	
  Real
  Estate Agreements

  	
  51

  
	
  ARTICLE VII

  	
  DISPUTE RESOLUTION

  	
  51

  
	
  7.1

  	
  General
  Provisions

  	
  51

  
	
  7.2

  	
  Consideration
  by Senior Executives

  	
  52

  
	
  7.3

  	
  Arbitration

  	
  52

  
	
  7.4

  	
  Specific
  Performance

  	
  54

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
  54

  
	
  8.1

  	
  Corporate
  Power

  	
  54

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Governing
  Law

  	
  55

  
	
  8.3

  	
  Survival
  of Covenants

  	
  55

  
	
  8.4

  	
  Force
  Majeure

  	
  55

  
	
  8.5

  	
  Notices

  	
  55

  
	
  8.6

  	
  Termination

  	
  56

  
	
  8.7

  	
  Severability

  	
  56

  
	
  8.8

  	
  Entire
  Agreement

  	
  56

  
	
  8.9

  	
  Assignment;
  No Third-Party Beneficiaries

  	
  56

  
	
  8.10

  	
  Public
  Announcements

  	
  57

  
	
  8.11

  	
  Amendment

  	
  57

  
	
  8.12

  	
  Rules of
  Construction

  	
  57

  
	
  8.13

  	
  Counterparts

  	
  57

  



 


iii

















 


EXHIBITS


 


	
  A-1

  	
  Form of Ala Moana Condominium Declaration

  
	
  A-2

  	
  Form of Ala Moana Development Agreement

  
	
  B

  	
  Form of Arizona 2 Promissory Note

  
	
  C

  	
  Form of Assumption Agreement

  
	
  D

  	
  Form of Columbia Development Agreement

  
	
  E

  	
  Form of Employee Leasing Agreement

  
	
  F

  	
  Form of Employee Matters Agreement

  
	
  G

  	
  Form of Fashion Show Core Principles

  
	
  H

  	
  Form of Registration Rights Agreement

  
	
  I-1

  	
  Form of REP Investments Stockholders Agreement

  
	
  I-2

  	
  Form of Fairholme Stockholders Agreement

  
	
  I-3

  	
  Form of Pershing Square Stockholders Agreement

  
	
  J-1

  	
  Form of 110 N. Wacker (Chicago Headquarters) Sublease Term Sheet

  
	
  J-2

  	
  Form of 10,000 W. Charleston (Las Vegas Headquarters) Sublease
  Term Sheet

  
	
  J-3

  	
  Form of Columbia Headquarters Sublease Term Sheet

  
	
  K

  	
  Form of Surety Bond Indemnity Agreement

  
	
  L

  	
  Form of Tax Matters Agreement

  
	
  M-1

  	
  Form of Transition Services Agreement

  
	
  M-2

  	
  Form of Reverse Transition Services Agreement

  
	
  N

  	
  Form of Warrant and Registration Rights Agreement

  



 


SCHEDULES


 


	
  2.1(a)

  	
  Spinoff Plan

  
	
  6.5(a)

  	
  Assumed Actions

  



 


iv

















 


SEPARATION AGREEMENT


 


This
SEPARATION AGREEMENT (this “Agreement”), dated as of [·], 2010, is by and between General Growth
Properties, Inc., a Delaware corporation (“GGP”), and The Howard
Hughes Corporation, a Delaware corporation (“Spinco”).  Capitalized terms used herein shall have the
meanings assigned to them in Article I hereof or as otherwise
expressly set forth herein.


 


RECITALS


 


WHEREAS,
the board of directors of GGP has determined that it is in the best interests
of GGP and its shareholders to create a new publicly traded company which shall
operate the Spinco Business;


 


WHEREAS,
Spinco has been incorporated solely for these purposes and has not engaged in
activities except in preparation for its corporate restructuring and the
distribution of its stock;


 


WHEREAS,
the board of directors of GGP and the board of directors of Spinco have
approved the transfer of the Spinco Assets to Spinco and its Subsidiaries and
the assumption by Spinco and certain of its Subsidiaries of the Spinco
Liabilities, all as more fully described in this Agreement and the other
Transaction Documents;


 


WHEREAS,
pursuant to the terms of the Order, the Bankruptcy Court approved the
distribution of shares of the common stock, no par value per share, of Spinco
(the “Spinco Common Stock”) to the holders of issued and
outstanding units of GGP LP as of the close of business on the Record Date;


 


WHEREAS,
pursuant to the terms of the Order, the Bankruptcy Court has further approved
the distribution of Spinco Common Stock to the holders of issued and outstanding
common shares, $0.01 par value per share, of GGP (the “GGP Common
Shares”) as of the close of business on the Record Date, on the basis of
0.0983 shares of Spinco Common Stock for every one (1) GGP Common Share; provided,
however, that no fractional shares shall be issued (the “Distribution”);


 


WHEREAS,
GGP and Spinco have prepared, and Spinco has filed with the SEC, the Form 10,
including the information statement contained therein, and which sets forth
disclosure concerning Spinco and the Distribution;


 


WHEREAS,
commencing on April 16, 2009 and continuing thereafter, GGP and certain of
its Subsidiaries filed voluntary petitions for relief under chapter 11 of title
11 of the United States Code in the United States Bankruptcy Court for the
Southern District of New York (the “Bankruptcy Court”), Case No. 09-11977
(ALG) (collectively, the (the “Bankruptcy Cases”);


 


WHEREAS,
the Distribution will be implemented in connection with the Joint Plan of
Reorganization under Chapter 11 of the Bankruptcy Code by GGP and certain of
its Subsidiaries filed with the United States Bankruptcy Court for the Southern
District of New 


 

















 


York on [·], as it may be subsequently amended and
supplemented, as approved by the Bankruptcy Court (the “Plan”) and;


 


WHEREAS,
for U.S. federal income tax purposes, certain steps of the Restructuring and
the Distribution are intended to qualify for tax-free treatment under Sections
351, 355, 368(a) and related provisions of the Code;


 


WHEREAS,
GGP has received a private letter ruling from the IRS to the effect that, among
other things, (i) certain steps of the Restructuring and the Distribution,
taken together, qualify as a transaction (a) that is described in Sections
355(a) and 368(a)(1)(G) of the Code, (b) in which the Spinco
Common Stock distributed is “qualified property” under Section 361(c) of
the Code and (c) in which the holders of GGP Common Shares recognize no
income or gain for U.S. federal income tax purposes under Section 355 of
the Code, and (ii) certain other steps of the Spinoff Plan qualify as
transactions that are described in Sections 355(a) and 368(a)(1)(G) of
the Code (the “Private Letter Ruling”);


 


WHEREAS,
this Agreement is intended to be a “plan of reorganization” within the meaning
of Treas. Reg. 1.368-2(g); and


 


WHEREAS,
it is appropriate and desirable to set forth the principal corporate
transactions required to effect the Restructuring and the Distribution and to
set forth certain other agreements that will, following the Distribution,
govern certain matters relating to the Restructuring and the Distribution and
the relationship of GGP, Spinco and their respective Subsidiaries.


 


NOW,
THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


1.1                                 Certain Definitions.  For purposes of this Agreement, the following
terms shall have the meanings specified in this Section 1.1:


 


“Action”
means any demand, action, claim, dispute, suit, countersuit, arbitration,
inquiry, subpoena, proceeding or investigation of any nature (whether criminal,
civil, legislative, administrative, regulatory, prosecutorial or otherwise) by
or before any federal, state, local, foreign or international Governmental
Authority or any arbitration or mediation tribunal.


 


“Affiliate”
(including, with a correlative meaning, “affiliated”) means, when used
with respect to a specified Person, a Person that directly or indirectly,
through one (1) or more intermediaries, controls, is controlled by or is
under common control with such specified Person.  For the purpose of this definition, “control”
(including with correlative meanings, “controlled by” and “under
common control with”), when used with respect to any specified Person shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the 


 


2

















 


management
and policies of such Person, whether through the ownership of voting securities
or other interests, by Contract, agreement, obligation, promise, arrangement or
otherwise.  It is expressly agreed that,
from and after the Effective Time and for purposes of this Agreement and the
other Transaction Documents, no member of the Spinco Group shall be deemed to
be an Affiliate of any member of the GGP Group, and no member of the GGP Group
shall be deemed to be an Affiliate of any member of the Spinco Group.


 


“Ala
Moana Condominium Declaration” means a Declaration of Condominium Property
Regime of 1555 Kapiolani Condominium in substantially the form attached hereto
as Exhibit A-1 to be recorded concurrently with the execution of
the Ala Moana Development Agreement.


 


“Ala
Moana Development Agreement” means the Development Agreement in
substantially the form attached hereto as Exhibit A-2 to be entered
into by Kapiolani Retail LLC and Kapiolani Residential, LLC on or prior to the
Plan Effective Date.


 


“Ancillary
Documents” means the Tax Matters Agreement, the Transition Services
Agreement, the Reverse Transition Services Agreement, the Employee Matters
Agreement, the Employee Leasing Agreement, the Real Estate Agreements, the
Transfer Documents, the Subleases, the Surety Bond Indemnity Agreement, [the
Spinco Option Agreements] and the Assumption Agreement.


 


“Approvals
or Notifications” means any consents, waivers, approvals, permits or
authorizations to be obtained from, notices, registrations or reports to be
submitted to, or other filings to be made with, any third Person, including any
Governmental Authority.


 


“Arizona
2 Promissory Note” means the Promissory Note in substantially the form
attached hereto as Exhibit B to be made by GGP LP on or prior to
the Plan Effective Date.


 


“Assets”
means, with respect to any Person, the assets, properties, claims and rights
(including goodwill) held by or in the name of such Person, wherever located
(including in the possession of vendors or other third Persons or elsewhere),
of every kind, character and description, whether real, personal or mixed,
tangible, intangible or contingent, known or unknown, in each case whether or
not recorded or reflected or required to be recorded or reflected on the books
and records or financial statements of such Person, including the following:


 


(a)                                  all accounting and other books, records and files whether in paper,
microfilm, microfiche, computer tape or disc, magnetic tape, electronic or any
other form;


 


(b)                                 all apparatus, computers and other electronic data processing and
communications equipment, fixtures, machinery, equipment, furniture, office
equipment, automobiles, trucks, motor vehicles and other transportation
equipment and other tangible personal property;


 


(c)                                  all inventories of materials, parts, raw materials, components, supplies,
work-in-process and finished goods and products;


 


3

















 


(d)                                 all interests in real property of whatever nature, including easements,
whether as owner, mortgagee or holder of a Security Interest in real property,
lessor, sublessor, lessee, sublessee, licensor, licensee or otherwise;


 


(e)                                  (i) all interests in any capital stock or other equity interests of
any Subsidiary or any other Person, (ii) all bonds, notes, debentures or
other securities issued by any Subsidiary or any other Person, (iii) all
loans, advances or other extensions of credit or capital contributions to any
Subsidiary or any other Person and (iv) all other investments in
securities of any Person;


 


(f)                                    all license agreements, leases of personal property, open purchase orders
for raw materials, supplies, parts or services and other Contracts, agreements
or commitments;


 


(g)                                 all written (including in electronic form) or oral technical information,
data, specifications, research and development information, engineering
drawings and specifications, operating and maintenance manuals, and materials
and analyses prepared by consultants and other third Persons;


 


(h)                                 all Intellectual Property and Technology;


 


(i)                                     all Software;


 


(j)                                     all cost information, sales and pricing data, customer prospect lists,
supplier records, customer and supplier lists, customer and vendor data,
correspondence and lists, product data and literature, artwork, design,
formulations and specifications, quality records and reports and other books,
records, studies, surveys, reports, plans and documents;


 


(k)                                  all prepaid expenses, trade accounts and other accounts and notes
receivable;


 


(l)                                     all rights under Contracts, agreements and entitlements, all claims or
rights against any Person arising from the ownership of any Asset or otherwise,
all rights in connection with any bids or offers and all claims, choses in
action or similar rights, whether accrued or contingent;


 


(m)                               all rights under insurance policies and all rights in the nature of
insurance, indemnification or contribution;


 


(n)                                 all licenses, permits, approvals and authorizations which have been
issued by any Governmental Authority;  and


 


(o)                                 all interest rate, currency, commodity or other swap, collar, cap or
other hedging or similar agreements or arrangements.


 


“Assumption
Agreement” means the Assumption Agreement in substantially the form
attached hereto as Exhibit C to be entered into by GGP and Spinco
on or prior to the Plan Effective Date.


 


4














 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Columbia
Development Agreement” means the Development Agreement and Memorandum of
Intent in substantially the form attached hereto as Exhibit D to be
entered into by GGP LP and Spinco on or prior to the Plan Effective Date.


 


“Contract”
means any contract, agreement, indenture, note, bond, mortgage, loan,
instrument, lease, license, commitment or other arrangement, understanding,
undertaking, commitment or obligation, whether written or oral.


 


“Cornerstone
Investment Agreement” means the Amended and Restated Cornerstone Investment
Agreement, effective as of March 31, 2010, by and between GGP and REP
Investments LLC, as it may be further amended.


 


“Disclosure
Statement” means the disclosure statement in respect of the Plan, including
all exhibits and schedules thereto, as it may be amended, supplemented or
otherwise modified from time to time, and as approved by the Bankruptcy Court
in accordance with Section 1125 of the Bankruptcy Code.


 


“Distribution
Agent” means The Bank of New York Mellon Corporation (and/or its
affiliates).


 


“Effective
Time” means the time at which the Distribution occurs as provided in the
Order.


 


“Employee
Leasing Agreement” means the Employee Leasing Agreement in substantially
the form attached hereto as Exhibit E, to be entered into by and
between GGP and Spinco or a Subsidiary thereof on or prior to the Plan
Effective Date.


 


“Employee
Matters Agreement” means the Employee Matters Agreement in substantially
the form attached hereto as Exhibit F, to be entered into by and
between GGP and Spinco or a Subsidiary thereof on or prior to the Plan
Effective Date.


 


“Environmental
Law” means any applicable Law relating to pollution, protection or
restoration of or prevention of harm to the environment or natural resources,
including the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.


 


“Exchange
Act” means the United States Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall
be in effect at the time that reference is made.


 


“Fairholme
Investment Agreement” means the Amended and Restated Stock Purchase
Agreement, effective as of March 31, 2010, by and between GGP and The
Fairholme Fund, a series of Fairholme Funds, Inc., and Fairholme Focused
Income Fund, a series of Fairholme Funds, Inc., as it may be further
amended.


 


5

















 


“Fashion
Show Core Principles” means the Fashion Show Air Rights — Core Principles
in substantially the form attached hereto as Exhibit G to be
entered into by GGP LP and Spinco on or prior to the Plan Effective Date.


 


“Force
Majeure” means, with respect to a party, an event beyond the reasonable control
of such party (or any Person acting on its behalf), and includes acts of God,
storms, floods, riots, fires, sabotage, civil commotion or civil unrest,
interference by civil or military authorities, acts of war (declared or
undeclared) or armed hostilities or other national or international calamity or
one (1) or more acts of terrorism or failure of energy sources or
distribution facilities.  Notwithstanding
the foregoing, the receipt by a party of an unsolicited takeover offer or other
acquisition proposal, even if unforeseen or unavoidable, and such party’s
response thereto shall not be deemed an event of Force Majeure.


 


“Form 10”
means the registration statement on Form 10 filed by Spinco with the SEC
on August 25, 2010 to effect the registration of Spinco Common Stock
pursuant to the Exchange Act in connection with the listing of Spinco’s common
stock on the New York Stock Exchange, as such registration statement may be
amended or supplemented from time to time.


 


“GGP
Accounts” means the bank and brokerage accounts owned by GGP or any other
member of the GGP Group.


 


“GGP
Business” means the businesses and operations conducted immediately prior
to the Effective Time by any member of the GGP Group that are not included in
the Spinco Business.


 


“GGP
Disclosure Documents” means any registration statement filed with the SEC
in the name of any member of the GGP Group as registrant, and any prospectus,
offering memorandum, offering circular or similar disclosure document, whether
or not filed with the SEC or any other Governmental Authority, that is prepared
in connection with any such registration statement.


 


“GGP
Group” means GGP and each of its direct and indirect Subsidiaries
immediately following implementation of the Spinoff Plan, expressly excluding
the Spinco Group.


 


“GGP
Intellectual Property” means (i) the GGP Name and GGP Marks and (ii) all
other Intellectual Property that is owned by any member of the GGP Group
immediately after the Effective Time.


 


“GGP
LP” means GGP Limited Partnership, a Delaware limited partnership.


 


“GGP
Name and GGP Marks” means the names, marks, trade dress, logos, monograms,
domain names and other source or business identifiers of GGP or any of its
Subsidiaries using or containing “GGP” (in block letters or otherwise), “GGP” either
alone or in combination with other words or elements and all names, marks,
trade dress, logos, monograms, domain names and other source or business
identifiers confusingly similar to or embodying any of the foregoing either
alone or in combination with other words or elements, together with the
goodwill associated with any of the foregoing.


 


6

















 


“GGP
Software” means all Software that is owned by any member of the GGP Group
immediately after the Effective Time.


 


“GGP
Technology” means all Technology that is owned by any member of the GGP
Group immediately after the Effective Time.


 


“Governmental
Authority” means any nation or government, any state, municipality or other
political subdivision thereof, and any entity, body, agency, commission,
department, board, bureau, court, tribunal or other instrumentality, whether
federal, state, local, domestic, foreign or multinational, exercising
executive, legislative, judicial, regulatory, administrative or other similar
functions of, or pertaining to, government and any executive official thereof.


 


“Group”
means the GGP Group or the Spinco Group, as the context requires.


 


“Hazardous
Materials” means any chemical, material, substance, waste, classified,
regulated or otherwise classified as “hazardous,” “toxic,” “pollutant” or
“contaminant,” or words of similar meaning or effect or any other material,
substance or waste, that could result in liability under, or that is
prohibited, limited or regulated by or pursuant to, any Environmental Law, and
any natural or artificial substance (whether solid, liquid or gas, noise, ion,
vapor or electromagnetic) which could cause harm to the environment, including
petroleum, petroleum products and byproducts, asbestos and asbestos-containing
materials, urea formaldehyde foam insulation, electronic, medical or infectious
wastes, polychlorinated biphenyls, radon gas, radioactive substances,
chlorofluorocarbons and all other ozone-depleting substances.


 


“Information”
means information, whether or not patentable or copyrightable, in written,
oral, electronic or other tangible or intangible forms, stored in any medium,
including studies, reports, records, books, Contracts, instruments, surveys,
discoveries, ideas, concepts, know-how, techniques, designs, specifications,
drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data,
computer data, disks, diskettes, tapes, computer programs or other software,
marketing plans, customer names, communications by or to attorneys (including
attorney-client privileged communications), memoranda and other materials
prepared by attorneys or under their direction (including attorney work
product), and other technical, financial, employee or business information or
data.


 


“Insurance
Policies” means the insurance policies written by insurance carriers,
including any self-insurance arrangements, pursuant to which Spinco or one (1) or
more of its Subsidiaries (or their respective officers or directors) will be
insured parties after the Effective Time.


 


“Insurance
Proceeds” means those monies (i) received by an insured from an
insurance carrier, (ii) paid by an insurance carrier on behalf of the
insured or (iii) received (including by way of set off) from any third
Person in the nature of insurance, contribution or indemnification in respect
of any Liability; in any such case net of any applicable premium adjustments
(including reserves and retrospectively rated premium adjustments) and net of
any costs or expenses incurred in the collection thereof.


 


7

















 


“Intellectual
Property” means all of the following whether arising under the Laws of the
United States or of any other foreign or multinational jurisdiction: (i) patents,
patent applications (including patents issued thereon) and statutory invention
registrations, including reissues, divisions, continuations, continuations in
part, substitutions, renewals, extensions and reexaminations of any of the
foregoing, and all rights in any of the foregoing provided by international
treaties or conventions, (ii) trademarks, service marks, trade names,
service names, trade dress, logos and other source or business identifiers,
including all goodwill associated with any of the foregoing, and any and all
common law rights in and to any of the foregoing, registrations and
applications for registration of any of the foregoing, all rights in and to any
of the foregoing provided by international treaties or conventions, and all
reissues, extensions and renewals of any of the foregoing, (iii) Internet
domain names, (iv) copyrightable works, copyrights, moral rights, mask
work rights, database rights and design rights, in each case, other than
Software, whether or not registered, and all registrations and applications for
registration of any of the foregoing, and all rights in and to any of the
foregoing provided by international treaties or conventions, (v) confidential
and proprietary information, including trade secrets, invention disclosures,
processes and know-how, in each case, other than Software, and (vi) intellectual
property rights arising from or in respect of any Technology.


 


“Investment
Agreements” means the Cornerstone Investment Agreement, Fairholme
Investment Agreement and Pershing Investment Agreement.


 


“IP
Application” means any application for the registration, issuance or
perfection of any intellectual property rights, including patent applications,
copyright applications and trademark applications.


 


“IRS”
means the United States Internal Revenue Service.


 


“Law”
means any national, supranational, federal, state, provincial, local or similar
law (including common law), statute, code, order, ordinance, rule, regulation,
treaty (including any income tax treaty), license, permit, authorization,
approval, consent, decree, injunction, binding judicial or administrative
interpretation or other requirement, in each case, enacted, promulgated, issued
or entered by a Governmental Authority.


 


“Liabilities”
means any and all debts, guarantees, liabilities, costs, expenses, interest and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured, reserved or unreserved, or determined or determinable (now or in the
future), including those arising under any Law, claim (including any third Person
product liability claim), demand, Action, whether asserted or unasserted, or
order, writ, judgment, injunction, decree, stipulation, determination or award
entered by or with any Governmental Authority and those arising under any
Contract, agreement, obligation, indenture, instrument, lease, promise,
arrangement, release, warranty, commitment or undertaking, or any fines,
damages or equitable relief that is imposed, in each case, including all costs
and expenses relating thereto.


 


“Order”
means the order of the Bankruptcy Court approving the Distribution.


 


“Pershing
Investment Agreement” means the Amended and Restated Stock Purchase
Agreement, effective as of March 31, 2010, by and between GGP and Pershing
Square 


 


8

















 


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.,
as it may be further amended.


 


“Person”
means any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, Governmental Authority or other entity.


 


“Plan
Effective Date” means the date on which distributions to holders of claims
and equity interests commences pursuant to the Plan, or such other time as
determined by GGP in accordance with Section 3.3.


 


“Pre-GGP
Insurance Policies” means third-party insurance policies held by GGP or its
Subsidiaries that are in effect immediately after the Effective Time that
satisfy each of the following conditions: (i) such insurance policy was
acquired directly or indirectly by GGP as a result of GGP’s acquisition of the
holder of such insurance policy, and (ii) at the time of such acquisition,
the business of the holder of such insurance policy related to some or all of
the businesses comprising the Spinco Business.


 


“Real
Estate Agreements” means the Ala Moana Condominium Declaration, the Ala
Moana Development Agreement, the Arizona 2 Promissory Note, the Columbia
Development Agreement and the Fashion Show Core Principles.


 


“Record
Date” means [·], 2010.


 


“Registration
Rights Agreement” means the Registration Rights Agreement in substantially
the form attached hereto as Exhibit H, to be entered into by and
between certain purchasers to be named therein and Spinco, as of the Effective
Time.


 


“Restructuring”
means the transfer of the Spinco Assets to Spinco and its Subsidiaries and the
assumption of the Spinco Liabilities by Spinco and its Subsidiaries, and the
transfer of certain Excluded Assets to GGP and its Subsidiaries and the
assumption by GGP and its Subsidiaries of certain Excluded Liabilities,  all as more fully described in this Agreement and the other
Transaction Documents and including the steps set forth in the Spinoff Plan and
the Plan.


 


“Reverse
Transition Services Agreement” means the Reverse Transition Services
Agreement in substantially the form attached hereto as Exhibit M-2,
to be entered into by and between GGP and Spinco, and/or any of their
respective Subsidiaries, on or prior to the Plan Effective Date.


 


“SEC”
means the United States Securities and Exchange Commission.


 


“Securities
Act” means the United States Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in
effect at the time that reference is made.


 


9

















 


“Security
Interest” means any mortgage, security interest, pledge, lien, charge,
claim, option, right to acquire, voting or other restriction, right-of-way,
covenant, condition, easement, encroachment, restriction on transfer, or other
encumbrance of any other nature.


 


“Software”
means any and all (i) computer programs, including any and all software
implementation of algorithms, models and methodologies, whether in source code,
object code, human readable form or other form, (ii) databases and
compilations, including any and all data and collections of data, whether
machine readable or otherwise, (iii) descriptions, flow charts and other
work products used to design, plan, organize and develop any of the foregoing,
screens, user interfaces, report formats, firmware, development tools,
templates, menus, buttons and icons, and (iv) documentation, including
user manuals and other training documentation, relating to any of the
foregoing.


 


“Spinco
Balance Sheet” means Spinco’s unaudited pro forma condensed combined
balance sheet in Item 2 of the Form 10.


 


“Spinco
Business” means the management, operation and development of the properties
and assets described in Item 1 of the Form 10, as conducted by any member
of the Spinco Group immediately prior to the Effective Time.


 


“Spinco
Contracts” means the following Contracts, to the extent in effect
immediately prior to the Effective Time:


 


(a)                                  any Contracts to which one or more members of the Spinco Group is a
party; provided that no members of the GGP Group are also party to such
Contracts;


 


(b)                                 any Contracts that relate exclusively to the Spinco Business; and


 


(c)                                  any Contract that is otherwise expressly contemplated pursuant to this
Agreement or any of the other Transaction Documents to be assigned to Spinco or
any member of the Spinco Group.


 


“Spinco
Disclosure Documents” means any registration statement (including the Form 10)
filed with the SEC in the name of any member of the Spinco Group as registrant,
and any prospectus, offering memorandum, offering circular or similar
disclosure document, whether or not filed with the SEC or any other
Governmental Authority, that is prepared in connection with any such
registration statement.


 


“Spinco
Employees” means all Business Employees (as defined in the Employee Matters
Agreement) and all Leased Employees (as defined in the Employee Leasing
Agreement).


 


“Spinco
Group” means Spinco and each of its direct and indirect Subsidiaries
immediately following implementation of the Spinoff Plan.


 


[“Spinco
Option Agreements” means (i) that certain option agreement entered
into between Spinco and Thomas Nolan and (ii) that certain option
agreement entered into between Spinco and Adam Metz, pursuant to which Spinco
will issue options to purchase Spinco


 


10

















 


Common
Stock to Thomas Nolan and Adam Metz, respectively, in accordance with the terms
thereof.]


 


“Stockholders
Agreements” means the letters substantially in the forms attached hereto as
Exhibits I-1 — I-3, to be entered into by and between Spinco and each of
REP Investments LLC (and/or its affiliates), The Fairholme Fund (and/or its
affiliates) and Pershing Square Capital Management, L.P. (and/or its
affiliates) on or prior to the Plan Effective Date.


 


“Subleases”
means the subleases substantially in the forms attached hereto as Exhibits
J-1 — J-3, to be entered into by and between GGP (and/or a Subsidiary thereof)
and Spinco (and/or a Subsidiary thereof) on or prior to the Plan Effective
Date.


 


“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation,
limited liability company, joint venture or partnership of which such Person
(i) beneficially owns, either directly or indirectly, more than fifty
percent (50%) of (A) the total combined voting power of all classes of
voting securities of such Person, (B) the total combined equity interests
or (C) the capital or profit interests, in the case of a partnership, or
(ii) otherwise has the power to vote, either directly or indirectly,
sufficient securities, or the contractual right, to elect a majority of the
board of directors or similar governing body or the managing partner or
managing member.


 


“Surety
Bond Indemnity Agreement” means the Surety Bond Indemnity Agreement, in
substantially the form attached hereto as Exhibit K, to be entered
into by and between GGP and Spinco on or prior to the Plan Effective Date.


 


“Tax”
has the meaning set forth in the Tax Matters Agreement.


 


“Tax
Attributes” has the meaning set forth in the Tax Matters Agreement.


 


“Tax
Matters Agreement” means the Tax Matters Agreement, in substantially the
form attached hereto as Exhibit L, to be entered into by and
between GGP and Spinco on or prior to the Plan Effective Date.


 


“Technology”
means all technology, designs, formulae, algorithms, procedures, methods,
discoveries, processes, techniques, ideas, know-how, research and development,
technical data, tools, materials, specifications, processes, inventions
(whether patentable or unpatentable and whether or not reduced to practice)
apparatus, creations, improvements, works of authorship in any media,
confidential, proprietary or non-public information, and other similar materials,
and all recordings, graphs, drawings, reports, analyses and other writings, and
other tangible embodiments of the foregoing in any form whether or not listed
herein, in each case, other than Software.


 


“Transaction
Documents” means this  Agreement, the
Ancillary Documents, the Registration Rights Agreement, the Warrant and
Registration Rights Agreement and the Stockholders Agreements.


 


“Transactions”
means, collectively, (i) the Restructuring, (ii) the Distribution,
and (iii) all other transactions contemplated by this Agreement or any
other Transaction Document.


 


11

















 


“Transition
Services Agreement” means the Transition Services Agreement in
substantially the form attached hereto as Exhibit M-1, to be entered
into by and between GGP and Spinco, and/or any of their respective
Subsidiaries, on or prior to the Plan Effective Date.


 


“Warrant
and Registration Rights Agreement” means the Warrant and Registration
Rights Agreement in substantially the form attached hereto as Exhibit N,
to be entered into by and between Spinco and Mellon Investor Services LLC, as
of the Effective Time.


 


1.2                                 Other Terms.  For purposes of this Agreement, the following
terms have the meanings set forth in the sections indicated.


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Amended
  and Restated Bylaws

  	
   

  	
  3.1(c)

  
	
  Amended
  and Restated Certificate of Incorporation

  	
   

  	
  3.1(c)

  
	
  Assumed
  Actions

  	
   

  	
  6.5(a)

  
	
  Bankruptcy
  Cases

  	
   

  	
  Recitals

  
	
  Bankruptcy
  Closing

  	
   

  	
  7.1(a)

  
	
  Bankruptcy
  Court

  	
   

  	
  Recitals

  
	
  CPR

  	
   

  	
  7.3(a)

  
	
  CPR
  Arbitration Rules

  	
   

  	
  7.3(a)

  
	
  Dispute

  	
   

  	
  7.1(b)

  
	
  Distribution

  	
   

  	
  Recitals

  
	
  Excluded
  Assets

  	
   

  	
  2.2(b)

  
	
  Excluded
  Liabilities

  	
   

  	
  2.3(b)

  
	
  GGP

  	
   

  	
  Preamble

  
	
  GGP
  Accounts

  	
   

  	
  2.8(a)

  
	
  GGP
  Common Shares

  	
   

  	
  Recitals

  
	
  GGP
  Confidential Information

  	
   

  	
  6.2(b)

  
	
  GGP
  Indemnified Parties

  	
   

  	
  5.2

  
	
  Guarantee
  Release

  	
   

  	
  5.10(b)

  
	
  Indemnified
  Party

  	
   

  	
  5.5(a)

  
	
  Indemnifying
  Party

  	
   

  	
  5.5(a)

  
	
  Indemnity
  Payment

  	
   

  	
  5.5(a)

  
	
  Initial
  Notice

  	
   

  	
  7.2

  
	
  linked

  	
   

  	
  2.8(a)

  
	
  Non-Transferred
  Asset

  	
   

  	
  2.5(a)

  
	
  Non-Transferred
  Liability

  	
   

  	
  2.5(a)

  
	
  Petition
  Date

  	
   

  	
  2.10

  
	
  Plan

  	
   

  	
  Recitals

  
	
  Private
  Letter Ruling

  	
   

  	
  Recitals

  
	
  Released
  Party

  	
   

  	
  2.6(a)

  
	
  Representatives

  	
   

  	
  6.2(a)

  
	
  Response

  	
   

  	
  7.2

  
	
  Responsible
  Party

  	
   

  	
  2.6(a)

  
	
  Shared
  Information

  	
   

  	
  6.2(c)

  



 


12

















 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Special
  Damages

  	
   

  	
  5.8

  
	
  Spinco

  	
   

  	
  Preamble

  
	
  Spinco
  Accounts

  	
   

  	
  2.8(a)

  
	
  Spinco
  Assets

  	
   

  	
  2.2(a)

  
	
  Spinco
  Common Stock

  	
   

  	
  Recitals

  
	
  Spinco
  Confidential Information

  	
   

  	
  6.2(a)

  
	
  Spinco
  Indemnified Parties

  	
   

  	
  5.3

  
	
  Spinco
  Liabilities

  	
   

  	
  2.3(a)

  
	
  Spinoff
  Plan

  	
   

  	
  2.1(a)

  
	
  Third
  Party Claim

  	
   

  	
  5.6(a)

  
	
  Transfer
  Documents

  	
   

  	
  2.1(b)

  
	
  Transferee
  Party

  	
   

  	
  2.5(a)

  
	
  Transferor
  Party

  	
   

  	
  2.5(a)

  
	
  Transferred
  Actions

  	
   

  	
  6.5(b)

  



 


ARTICLE II


 


THE
RESTRUCTURING


 


2.1                                 Transfer of Assets; Assumption of Liabilities.


 


(a)                                  Prior to the Distribution, in accordance with the plan and structure set
forth on Schedule 2.1(a) (such plan and structure being
referred to herein as the “Spinoff Plan”) and to the extent not
previously effected pursuant to the steps of the Spinoff Plan that have been
completed prior to the date hereof:


 


(i)                                     GGP shall, and shall cause its applicable Subsidiaries to, assign,
transfer, convey and deliver to Spinco or certain of Spinco’s Subsidiaries
designated by Spinco, and Spinco or such Subsidiaries shall accept from GGP and
its applicable Subsidiaries, all of GGP’s and such Subsidiaries’ respective
direct or indirect right, title and interest in and to all Spinco Assets
existing immediately prior to the Distribution in accordance with Schedule
2.1(a);


 


(ii)                                  Spinco and certain of its Subsidiaries designated by Spinco shall accept,
assume and agree faithfully to perform, discharge and fulfill all the Spinco
Liabilities in accordance with their respective terms.  Spinco and such Subsidiaries shall be
responsible for all Spinco Liabilities, regardless of when or where such Spinco
Liabilities arose or arise, or whether the facts on which they are based
occurred prior to or subsequent to the Plan Effective Date, regardless of where
or against whom such Spinco Liabilities are asserted or determined (including
any Spinco Liabilities arising out of claims made by GGP’s or Spinco’s
respective directors, officers, employees, agents or Subsidiaries against any
member of the GGP Group or the Spinco Group) or whether asserted or determined
prior to the date hereof, and, except as set forth in Section 2.3(b)(iii),
regardless of whether arising from or alleged to arise from negligence,
recklessness, violation of Law, fraud or misrepresentation by any member of the
GGP Group or the Spinco Group, or any of their respective directors, officers,
employees, agents or Subsidiaries;


 


13

















 


(iii)                               GGP shall cause its applicable Subsidiaries to assign, transfer, convey
and deliver to certain of its other Subsidiaries designated by GGP, and such
other Subsidiaries shall accept from such applicable Subsidiaries, such
applicable Subsidiaries’ respective right, title and interest in and to any
Excluded Assets specified by GGP to be so assigned, transferred, conveyed and
delivered, all as more fully set forth in the Spinoff Plan; and


 


(iv)                              GGP shall and shall cause GGP LP, as a Subsidiary of GGP, to accept and
assume as designated by GGP, and agree faithfully to perform, discharge and
fulfill certain Excluded Liabilities specified by GGP, and GGP and such
Subsidiary shall be responsible for all Excluded Liabilities, regardless of
when or where such Excluded Liabilities arose or arise, or whether the facts on
which they are based occurred prior to or subsequent to the Plan Effective
Date, regardless of where or against whom such Excluded Liabilities are
asserted or determined (including any such Excluded Liabilities arising out of
claims made by GGP’s or Spinco’s respective directors, officers, employees,
agents, Subsidiaries or Subsidiaries against any member of the GGP Group or the
Spinco Group) or whether asserted or determined prior to the date hereof, and
regardless of whether arising from or alleged to arise from negligence,
recklessness, violation of Law, fraud or misrepresentation by any member of the
GGP Group or the Spinco Group, or any of their respective directors, officers,
employees, agents or Subsidiaries.


 


(b)                                 In furtherance of the assignment, transfer, conveyance and delivery of
the Assets and the assumption of the Liabilities in accordance with Section 2.1(a),
on the date that such Assets are assigned, transferred, conveyed or delivered
or such Liabilities are assumed (i) GGP and Spinco, as applicable, shall
execute and deliver, and shall cause their respective Subsidiaries to execute
and deliver, such bills of sale, quitclaim deeds, stock powers, certificates of
title, assignments of partnership interests, assignments of Contracts and other
instruments of transfer, conveyance and assignment as and to the extent
reasonably necessary to evidence the transfer, conveyance and assignment of all
right, title and interest in and to such Assets to the applicable transferee
thereof provided in the Spinoff Plan, and (ii) GGP and Spinco shall
execute and deliver, and shall cause their respective Subsidiaries to execute
and deliver, such assumptions of Contracts and other instruments of assumption
as and to the extent necessary to evidence the valid and effective assumption
of such Liabilities by the applicable assignee thereof provided in the Spinoff
Plan.  All of the foregoing documents
contemplated by this Section 2.1(b) shall be referred to
collectively herein as the “Transfer Documents.”


 


(c)                                  Spinco hereby waives compliance by each and every member of the GGP Group
with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws
of any jurisdiction that may otherwise be applicable with respect to the
transfer or sale of any or all of the Spinco Assets to any member of the Spinco
Group.


 


(d)                                 GGP hereby waives compliance by each and every member of the Spinco Group
with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws
of any jurisdiction that may otherwise be applicable with respect to the
transfer or sale of any or all of the Excluded Assets to any member of the GGP
Group.


 


14














 


2.2                                 Spinco Assets.


 


(a)                                  For purposes of this Agreement, “Spinco Assets” shall mean
(without duplication) the following Assets (except to the extent they
constitute Excluded Assets):


 


(i)                                     all Assets owned by any member of the Spinco Group immediately prior to
the Effective Time, wherever such Assets may be located;


 


(ii)                                  any cash and cash equivalents in the Spinco Accounts as of the Effective
Time (and, for the avoidance of doubt, any cash and cash equivalents in the GGP
Accounts as of the Effective Time that the parties mutually agree should have
been in the Spinco Accounts as of the Effective Time pursuant to an express
agreement set forth in this Agreement or any other Transaction Document),
subject to Section 2.8(g);


 


(iii)                               any cash proceeds received directly or indirectly by GGP in respect of
any sales of real property in the Summerlin master planned community in Clark
County, Nevada to the extent such sales are closed by GGP or any of its then
current Subsidiaries during the period beginning on September 7, 2010 and
ending immediately prior to the Effective Time (net of any out-of-pocket costs,
fees and expenses incurred in connection therewith);


 


(iv)                              all Spinco Contracts;


 


(v)                                 subject to Section 6.3, any rights or claims of any member of
the Spinco Group under any of the Insurance Policies, including any rights or
claims thereunder arising after the Effective Time in respect of any Insurance
Policies;


 


(vi)                              any and all Assets reflected as Assets of Spinco and its Subsidiaries in
the Spinco Balance Sheet, subject to any dispositions of such Assets subsequent
to the date of the Spinco Balance Sheet;


 


(vii)                           any and all other Assets that are expressly provided by this Agreement,
the Plan, the Spinoff Plan or any other Transaction Document as Assets to be
transferred to Spinco or any other member of the Spinco Group; and


 


(viii)                        any and all Assets, other than Intellectual Property, Software and
Technology, owned or held immediately prior to the Effective Time by GGP or any
of its Subsidiaries that are used exclusively in the Spinco Business (the
intention of this clause (viii) is only to rectify any inadvertent
omission of transfer or conveyance of any Assets that, had the parties given
specific consideration to such Asset as of the date hereof, would have otherwise
been classified as a Spinco Asset; no Asset shall be deemed to be a Spinco
Asset solely as a result of this clause (viii) if such Asset is within the
category or type of Asset expressly covered by the terms of another Transaction
Document unless the party claiming entitlement to such Asset can establish that
the omission of the transfer or conveyance of such Asset was inadvertent, and
no Asset shall be deemed a Spinco Asset solely as a result of this clause
(viii) unless a claim with respect thereto is made by Spinco on or prior
to the second (2nd) anniversary of the Plan Effective Date).


 


(b)                                 For the purposes of this Agreement, “Excluded Assets” shall mean
(without duplication):


 


15

















 


(i)                                     the GGP Intellectual Property, GGP Software and the GGP Technology;


 


(ii)                                  any cash and cash equivalents (other than cash and cash equivalents
specified in Section 2.2(a)(ii) and Section 2.2(a)(iii));


 


(iii)                               any and all Assets that are expressly contemplated by this Agreement, the
Plan, the Spinoff Plan or any other Transaction Document as Assets to be
retained by GGP or any other member of the GGP Group;


 


(iv)                              any and all other Assets owned by any member of the GGP Group immediately
prior to the Effective Time, wherever such Assets may be located (other than
Spinco Assets); and


 


(v)                                 any and all Assets owned or held immediately prior to the Effective Time
by GGP or any of its Subsidiaries that are not used exclusively in the Spinco
Business (the intention of this clause (v) is only to rectify any
inadvertent transfer or conveyance of any Assets that, had the parties given
specific consideration to such Asset as of the date hereof, would have
otherwise been classified as an Excluded Asset; no Asset shall be deemed to be
an Excluded Asset solely as a result of this clause (v) if such Asset is
within the category or type of Asset expressly covered by the terms of another
Transaction Document unless the party claiming entitlement to such Asset can
establish that the transfer or conveyance of such Asset was inadvertent, and no
Asset shall be deemed an Excluded Asset solely as a result of this clause (v) unless
a claim with respect thereto is made by GGP on or prior to the second (2nd)
anniversary of the Plan Effective Date).


 


2.3                                 Spinco Liabilities.


 


(a)                                  For the purposes of this Agreement, “Spinco Liabilities” shall
mean (without duplication) the following Liabilities (except to the extent they
constitute Excluded Liabilities):


 


(i)                                     any and all Liabilities of any member of the Spinco Group;


 


(ii)                                  all Liabilities reflected as liabilities or obligations of Spinco or its
Subsidiaries in the Spinco Balance Sheet, subject to any discharge of such
Liabilities subsequent to the date of the Spinco Balance Sheet;


 


(iii)                               all other Liabilities that are expressly provided by this Agreement, the
Plan, the Spinoff Plan or any other Transaction Document as Liabilities to be
assumed by Spinco or any other member of the Spinco Group and all agreements or
obligations of any member of the Spinco Group under this Agreement or any of
the other Transaction Documents;


 


(iv)                              except as expressly provided in the Plan or this Agreement, all
Liabilities to the extent relating to, arising out of or resulting from:


 


(A)                              the operation of the Spinco Business, as conducted at any time before, at
or after the Effective Time (including any Liability relating to, arising out
of or 


 


16

















 


resulting from any act
or omission by any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within such Person’s
authority));


 


(B)                                the operation of any business conducted by any member of the Spinco Group
at any time before, at or after the Effective Time (including any Liability
relating to, arising out of or resulting from any act or failure to act by any
director, officer, employee, agent or representative (whether or not such act
or failure to act is or was within such Person’s authority));


 


(C)                                any Spinco Assets (including any Liability relating to, arising out of or
resulting from any Spinco Contracts); and


 


(D)                               any Liability relating to the protection or restoration of, or prevention
of harm to, the environment or natural resources, the protection of human and
occupational health and safety, or otherwise arising under Environmental Laws
or relating to Hazardous Materials arising out of (i) the operation of the
Spinco Business, as conducted at any time before, at or after, the Effective
Time, (ii) any of the Spinco Assets, including any other businesses,
operations or properties associated with the Spinco Assets (including any
businesses, operations or properties for which a current or future owner or
operator of the Spinco Assets or the Spinco Business may be alleged to be
responsible as a matter of Law, contract or otherwise due to such ownership or
operation of the Spinco Assets or Spinco Business), in any such case, whether
arising before, at or after the Effective Time or (iii) the operation of
any business conducted by any member of the Spinco Group at any time before, at
or after the Effective Time; and


 


(v)                                 all Liabilities arising out of any claim made by any Spinco Employee
arising in the course of such employee’s employment against any member of the
GGP Group or the Spinco Group, regardless of whether such claim arises prior to
or after the Effective Time.


 


(b)                                 For the purposes of this Agreement, “Excluded Liabilities” shall
mean (without duplication):


 


(i)                                     any and all Liabilities that are expressly contemplated by this Agreement,
the Plan, the Spinoff Plan or any other Transaction Document as Liabilities to
be retained or assumed by GGP or any other member of the GGP Group, and all
agreements and obligations of any member of the GGP Group under this Agreement
or any of the other Transaction Documents;


 


(ii)                                  any and all Liabilities of a member of the GGP Group to the extent
relating to, arising out of or resulting from any Excluded Assets;


 


(iii)                               any and all liabilities arising from a knowing violation of Law,
intentional fraud or intentional misrepresentation by any member of the GGP
Group or any of their respective directors, officers, employees or agents
(other than any individual who at the time of such act was acting in his or her
capacity as a director, officer, employee or agent of any member of the Spinco
Group or on behalf of the Spinco Business);


 


17

















 


(iv)                              all Liabilities arising out of any claim made by any employee of any
member of the GGP Group other than a Spinco Employee arising in the course of
such employee’s employment against any member of the GGP Group or the Spinco
Group, regardless of whether such claim arises prior to or after the Effective
Time;


 


(v)                                 any and all Liabilities of any members of the GGP Group that are not
Spinco Liabilities; and


 


(vi)                              any and all Liabilities arising from claims set forth in Class 4.2
of the Plan.


 


2.4                                 Approvals and Notifications of Spinco Assets and Liabilities.


 


(a)                                  If and to the extent that the valid, complete and perfected transfer or
assignment to the Spinco Group of any Spinco Assets or assumption by the Spinco
Group of any Spinco Liabilities would be a violation of applicable Law or
require any Approvals or Notifications in connection with the Restructuring, or
the Distribution, that has not been obtained or made by the Effective Time
then, unless the parties hereto mutually shall otherwise determine, the
transfer or assignment to the Spinco Group of such Spinco Assets or the
assumption by the Spinco Group of such Spinco Liabilities, as the case may be,
shall be automatically deemed deferred and any such purported transfer,
assignment or assumption shall be null and void until such time as all legal
impediments are removed or such Approvals or Notifications have been obtained or
made in accordance with this Section 2.4 hereof.  Notwithstanding the foregoing, any such
Spinco Assets or Spinco Liabilities shall continue to constitute Spinco Assets
and Spinco Liabilities for all other purposes of this Agreement.


 


(b)                                 If any transfer or assignment of any Spinco Asset or any assumption of
any Spinco Liabilities intended to be transferred, assigned or assumed
hereunder, as the case may be, is not consummated on or prior to the Plan
Effective Date, whether as a result of the provisions of Section 2.4(a) or
for any other reason, then, insofar as reasonably possible, the member of the
GGP Group retaining such Spinco Asset or such Spinco Liability, as the case may
be, shall thereafter hold such Spinco Asset or Spinco Liability, as the case
may be, for the use and benefit of the member of the Spinco Group entitled
thereto (at the expense of the member of the Spinco Group entitled
thereto).  In addition, the member of the
GGP Group retaining such Spinco Asset or such Spinco Liability shall, insofar
as reasonably possible and to the extent permitted by applicable Law, treat
such Spinco Asset or Spinco Liability in the ordinary course of business in
accordance with past practice and take such other actions as may be reasonably
requested (pursuant to Section 2.5(b) and otherwise) by the
member of the Spinco Group to whom such Spinco Asset is to be transferred or
assigned, or which will assume such Spinco Liability, as the case may be, in
order to place such member of the Spinco Group in a substantially similar
position as if such Spinco Asset or Spinco Liability had been transferred,
assigned or assumed as contemplated hereby and so that all the benefits and
burdens relating to such Spinco Asset or Spinco Liability, as the case may be,
including use, risk of loss, potential for gain, and dominion, control and
command over such Spinco Asset or Spinco Liability, as the case may be, is to
inure from and after the Effective Time to the Spinco Group.


 


18

















 


(c)                                  If and when the Approvals or Notifications, the absence of which caused
the deferral of transfer or assignment of any Spinco Asset or the deferral of
assumption of any Spinco Liability pursuant to Section 2.4(a), are
obtained or made, and, if and when any other legal impediments for the transfer
or assignment of any Spinco Asset or the assumption of any Spinco Liability
have been removed, the transfer or assignment of the applicable Spinco Asset or
the assumption of the applicable Spinco Liability, as the case may be, shall be
effected in accordance with the terms of this Agreement and/or the applicable
Transaction Document.


 


(d)                                 The reasonable out-of-pocket costs and expenses associated with any such
transfers or assignments of Spinco Assets or assumption of Spinco Liabilities,
including reasonable attorneys’ fees and all recording or similar fees, shall
be borne by GGP until the six month anniversary of the date of the
Distribution, and thereafter by Spinco; provided, that the GGO
Promissory Note (as defined in the Investment Agreements) shall be issued, and
subsequently adjusted, on the terms and conditions set forth in the Investment
Agreements.


 


2.5                                 Transfer of Non-Transferred Assets; Assumption of Non-Transferred
Liabilities.


 


(a)                                  If at any time or from time to time following the Effective Time, any
party hereto (or any member of such party’s respective Group), shall receive or
otherwise possess any Asset or Liability (including any Intellectual Property
or Technology) that is allocated to any other Person pursuant to this Agreement
or any other Transaction Document, such Person (or any member of such party’s
respective Group, the “Transferor Party”) shall promptly transfer, or
cause to be transferred, such Asset (each, a “Non-Transferred Asset”) or
Liability (each, a “Non-Transferred Liability”), as the case may be, to
the Person (or any member of such party’s respective Group, the “Transferee
Party”) entitled to such Non-Transferred Asset or responsible for such
Non-Transferred Liability, as the case may be, and the Transferee Party
entitled to such Non-Transferred Asset or responsible for such Non-Transferred
Liability shall accept such Non-Transferred Asset or accept, assume and agree
faithfully to perform, discharge such Non-Transferred Liability, as applicable.


 


(b)                                 In furtherance of the assignment, transfer, conveyance and delivery of
Non-Transferred Assets and the assumption of Non-Transferred Liabilities set
forth in this Section 2.5, (i) the Transferor Party shall
execute and deliver such bills of sale, quitclaim deeds, stock powers,
certificates of title, assignments of contract and other instruments of
transfer, conveyance and assignment as and to the extent necessary to evidence
the transfer, conveyance and assignment of all of the Transferee Party’s right,
title and interest in and to the Non-Transferred Assets, and (ii) the
Transferee Party shall execute and deliver such assumptions of contract and
other instruments of assumption as and to the extent necessary to evidence the
valid and effective assumption of the Non-Transferred Liabilities.


 


(c)                                  To the extent that the transfer or assignment of any Non-Transferred
Assets or the assumption of any Non-Transferred Liabilities requires any
Approvals or Notifications, the parties shall use their commercially reasonable
efforts to obtain or make such Approvals or Notifications as soon as reasonably
practicable; provided, however, that, except to the extent
expressly provided in any of the other Transaction Documents, no member of the
GGP Group or Spinco Group shall be obligated to contribute capital or pay any
consideration in any 


 


19

















 


form (including
providing any letter of credit, guaranty or other financial accommodation) to
any Person in order to obtain or make such Approvals or Notifications.


 


(d)                                 If and to the extent that the valid, complete and perfected transfer or
assignment to the Transferee Party of any Non-Transferred Assets or the
assumption by the Transferee Party of any Non-Transferred Liabilities would be
a violation of applicable Law or require any material Approval or Notification
that has not been made or obtained on or before the Plan Effective Date, then,
unless the parties hereto mutually shall otherwise determine, the transfer or
assignment to the Transferee Party of such Non-Transferred Assets or the
assumption by the Transferee Party of such Non-Transferred Liabilities shall be
automatically deemed deferred and any such purported transfer, assignment or
assumption shall be null and void until such time as all legal impediments are
removed or such Approvals or Notifications have been obtained or made.  Notwithstanding the foregoing, any such
Non-Transferred Assets that are Excluded Assets or Non-Transferred Liabilities
that are Excluded Liabilities shall continue to constitute Excluded Assets or
Excluded Liabilities for all other purposes of this Agreement, and any such
Non-Transferred Assets that are Spinco Assets or Non-Transferred Liabilities
that are Spinco Liabilities shall continue to constitute Spinco Assets or
Spinco Liabilities for all other purposes of this Agreement.


 


(e)                                  If any transfer or assignment of any Non-Transferred Asset under this Section 2.5,
is not consummated on or prior to the Plan Effective Date, whether as a result
of the provisions of Section 2.5(d) or for any other reason,
then, insofar as reasonably possible, the Transferor Party retaining such
Non-Transferred Asset, shall thereafter hold such Non-Transferred Asset for the
use and benefit of the Transferee Party entitled thereto (at the expense of the
member of the Transferee Party entitled thereto).  In addition, the Transferor Party retaining
such Non-Transferred Asset shall, insofar as reasonably possible and to the
extent permitted by applicable Law, treat such Non-Transferred Asset in the
ordinary course of business in accordance with past practice and take such
other actions as may be reasonably requested by the Transferee Party to whom
such Non-Transferred Asset is to be transferred or assigned, in order to place
such Transferee Party in a substantially similar position as if such
Non-Transferred Asset had been transferred as contemplated hereby and so that
all the benefits and burdens relating to such Non-Transferred Asset, including
use, risk of loss, potential for gain, and dominion, control and command over
such Non-Transferred Asset, is to inure from and after the Effective Time to
the Transferee Party.


 


(f)                                    If and when the Approvals or Notifications, the absence of which caused
the deferral of transfer or assignment of any Non-Transferred Asset or the
deferral of assumption of any Non-Transferred Liability, are obtained or made,
and, if and when any other legal impediments for the transfer or assignment of
any Non-Transferred Assets or the assumption of any Non-Transferred Liabilities
have been removed, the transfer or assignment of the applicable Non-Transferred
Asset or the assumption of the applicable Non-Transferred Liability, as the
case may be, shall be effected in accordance with the terms of this Agreement
and/or the applicable Transaction Document.


 


(g)                                 The reasonable out-of-pocket costs and expenses associated with any such
transfers or assignments of Non-Transferred Assets or assumption of
Non-Transferred Liabilities, including reasonable attorneys’ fees and all
recording or similar fees, shall be borne 


 


20

















 


by the party that would
have been responsible for such costs and expenses if the transfer, assignment
or assumption had occurred at or prior to the Effective Time.


 


2.6                                 Novation of Liabilities.


 


(a)                                  Each of GGP and Spinco, at the request of the other, shall use its
commercially reasonable efforts to obtain, or to cause to be obtained, as soon
as reasonably practicable, any consent, substitution, approval or amendment
required to novate or assign all obligations under agreements, leases, licenses
and other obligations or Liabilities that constitute Excluded Liabilities or
Spinco Liabilities, as applicable, or to obtain in writing the unconditional
release of all parties to such arrangements other than any member of the GGP
Group or the Spinco Group, as applicable (the “Released Party”), so
that, in any such case, the members of the GGP Group or the Spinco Group, as
applicable (the “Responsible Party”) will be solely responsible for such
Liabilities; provided, however, that, except as otherwise
expressly provided in any of the other Transaction Documents, neither GGP nor
Spinco shall be obligated to contribute any capital or pay any consideration in
any form (including providing any letter of credit, guaranty or other financial
accommodation) to any third Person from whom any such consent, substitution,
approval, amendment or release is requested.


 


(b)                                 If the Released Party is unable to obtain, or to cause to be obtained,
any such required consent, substitution, approval, amendment or release, the
Released Party shall continue to be bound by such agreement, lease, license or
other obligation or Liability and, unless not permitted by the terms thereof or
by Law, the Responsible Party shall, as agent or subcontractor for the Released
Party, pay, perform and discharge fully all the obligations or other
Liabilities of the Released Party thereunder from and after the Effective Time.  The Responsible Party shall indemnify the
Released Party and any other members of its respective Group and each of their
respective directors, officers and employees, and each of the heirs, executors,
successors and assigns of any of the foregoing and hold each of them harmless against
any Liabilities arising in connection therewith; provided, that pursuant
hereto the Responsible Party shall have no obligation to indemnify any Person
that has engaged in any knowing violation of Law, fraud or misrepresentation in
connection therewith.  The Released Party
shall cause each member of its respective Group, without further consideration,
to pay and remit, or cause to be paid or remitted, to the Responsible Party or
its designee promptly all money, rights and other consideration received by it
or any member of its respective Group in respect of the document, agreement,
Contract, obligation or Liability that gave rise to such performance (unless
any such consideration is an Asset expressly allocated to the Released Party
pursuant to this Agreement).  If and when
any such consent, substitution, approval, amendment or release shall be
obtained or the obligations under such agreement, lease, license or other
obligations or Liabilities shall otherwise become assignable or able to be
novated, the Released Party shall promptly assign, or cause to be assigned, all
its obligations and other Liabilities thereunder or any obligations of any
member of its respective Group without payment of further consideration and the
Responsible Party, without the payment of any further consideration, shall, or
shall cause another member of its respective Group to, assume such obligations.


 


21

















 


2.7                                 Termination of Agreements and Arrangements.


 


(a)                                  Except as set forth in Section 2.7(b), in furtherance of the
releases and other provisions of Section 5.1, Spinco and each
member of the Spinco Group, on the one hand, and GGP and each member of the GGP
Group, on the other hand, hereby terminate, effective as of the Effective Time,
any and all agreements, arrangements, commitments or understandings, whether or
not in writing, solely between or among Spinco and/or any member of the Spinco
Group, on the one hand, and GGP and/or any member of the GGP Group, on the
other hand, effective as of the Effective Time; provided, however,
to the extent that termination of any such agreement, arrangement, commitment
or understanding is inconsistent with any other Transaction Document, such
termination shall be determined pursuant to the applicable Transaction
Document.  Notwithstanding the foregoing,
the Groups shall settle all intercompany receivables and payables as of the
Effective Time, and after the Effective Time neither Group shall owe any
further amounts to the other Group in respect of such intercompany receivables
and payables.  No such terminated
agreement, arrangement, commitment or understanding (including any provision
thereof which purports to survive termination) shall be of any further force or
effect after the Effective Time (or, to the extent contemplated by the proviso
to the immediately preceding sentence, after the effective date of the
applicable Transaction Document).  Each
party shall, at the reasonable request of any other party, take, or cause to be
taken, such other actions as may be necessary to effect the foregoing.


 


(b)                                 The provisions of Section 2.7(a) shall not apply to any
of the following agreements, arrangements, commitments or understandings (or to
any of the provisions thereof):


 


(i)                                     this Agreement and the other Transaction Documents (and each other
agreement or instrument expressly contemplated by this Agreement or any other
Transaction Document to be entered into or continued by any of the parties
hereto or any of the members of their respective Groups);


 


(ii)                                  any agreements, arrangements, commitments or understandings to which any
Person other than the parties hereto and their respective wholly-owned
Subsidiaries is a party (it being understood that (A) directors’
qualifying shares, preferred or similar interests or shares issued by entities
issuing such shares to satisfy REIT qualification requirements or the Code,
will be disregarded for purposes of determining whether a Subsidiary is wholly
owned and (B) to the extent that the rights and obligations of the parties
and the members of their respective Groups under any such agreements,
arrangements, commitments or understandings constitute Spinco Assets or Spinco
Liabilities, they shall be assigned pursuant to Section 2.1); and


 


(iii)                               any other agreements, arrangements, commitments or understandings that
this Agreement, the Plan, the Spinoff Plan or any other Transaction Document
expressly contemplates will survive the Plan Effective Date.


 


2.8                                 Bank Accounts; Cash Balances.


 


Except as may be set forth in
the Transition Services Agreement:


 


(a)                                  GGP and Spinco each agrees to take, or cause the respective members of
their respective Groups to take, to be effective at the Effective Time (or such
earlier time as GGP 


 


22

















 


and Spinco may agree),
all actions necessary to amend all Spinco Contracts governing each bank and
brokerage account owned by Spinco or any other member of the Spinco Group
(collectively, the “Spinco Accounts”), so that such Spinco Accounts, if
currently linked (whether by automatic withdrawal, automatic deposit or any
other authorization to transfer funds from or to, hereinafter “linked”)
to any bank or brokerage account owned by GGP or any other member of the GGP
Group (collectively, the “GGP Accounts”), are de-linked from the GGP
Accounts effective on the Plan Effective Date.


 


(b)                                 GGP and Spinco each agrees to take, or cause the respective members of
their respective Groups to take, to be effective at the Effective Time (or such
earlier time as GGP and Spinco may agree), all actions necessary to amend all
Spinco Contracts governing the GGP Accounts so that such GGP Accounts, if
currently linked to a Spinco Account, are de-linked from the Spinco Accounts.


 


(c)                                  It is intended that, following consummation of the actions contemplated
by Sections 2.8(a) and 2.8(b), there will continue to be in
place a centralized cash management process pursuant to which the Spinco
Accounts will be managed centrally and funds collected will be transferred into
one (1) or more centralized accounts maintained by Spinco.


 


(d)                                 It is intended that, following consummation of the actions contemplated
by Sections 2.8(a) and 2.8(b), there will continue to be in
place a centralized cash management process pursuant to which the GGP Accounts
will be managed centrally and funds collected will be transferred into one (1) or
more centralized accounts maintained by GGP.


 


(e)                                  With respect to any outstanding checks issued by GGP, Spinco, or any of
their respective Subsidiaries prior to the Effective Time, such outstanding
checks shall be honored following the Effective Time by the Person or Group
owning the account on which the check is drawn with prompt reimbursement from
the Person or Group that issued such check, if applicable, in each case subject
to the express provisions in the Plan or the Investment Agreements regarding
payment of claims.


 


(f)                                    As between GGP and Spinco (and the members of their respective Groups)
all payments and reimbursements received after the Effective Time by either
party (or member of its Group) in the ordinary course of business that relate
to a business, Asset or Liability of the other party (or member of its Group),
shall be held by such party in trust for the use and benefit of the party
entitled thereto and, promptly upon receipt by such party of any such payment
or reimbursement, such party shall pay over, or shall cause the applicable
member of its Group to pay over to the other party the amount of such payment
or reimbursement without right of set-off.


 


(g)                                 Each of GGP and Spinco agrees that, prior to the Effective Time, GGP or
any other member of the GGP Group may withdraw any and all cash or cash
equivalents (other than the cash proceeds specified in Section 2.2(a)(iii))
from the Spinco Accounts for the benefit of GGP or any other member of the GGP
Group; provided, however, that neither GGP nor any other member
of the GGP Group shall be entitled to withdraw any cash or cash equivalents
from any Spinco Account if, and to the extent that, the amount of such cash or
cash equivalents is necessary to cover any checks or wires made from or against
(or to be made from or against) a 


 


23

















 


Spinco Account as of,
or prior to, the Effective Time and which has not been paid or withdrawn as of
the Effective Time.


 


2.9                                 Replacement of Letters of Credit Relating to the Spinco Business.  Spinco shall use its
commercially reasonable efforts to replace, as promptly as practicable
following the Effective Time, each letter of credit relating to the Spinco
Business in effect immediately prior to the Effective Time with a new letter of
credit that does not involve any recourse, contingent or otherwise, to any
member of the GGP Group.


 


2.10                           Payment of Certain Ordinary Course, Pre-Petition Obligations.  Notwithstanding Section 2.3
hereof, with respect to any claims for ordinary course obligations of any
member of the Spinco Group that were incurred prior to the filing of the
Bankruptcy Cases (the “Petition Date”) that are subject to the Plan
but have been neither allowed nor disallowed as of the Plan Effective Date, GGP
shall satisfy, or cause to be satisfied, such claims if and to the extent they
become allowed claims; provided, however, that the aggregate
Liability of the GGP Group with respect to this Section 2.10 shall
not exceed a cap of $5,000,000 (it being understood that Liabilities allocated
to the GGP Group in Section 2.3(b)(vi) shall not count towards
such cap), and any Liabilities related to such claims in excess of such cap
shall be borne by the Spinco Group.


 


2.11                           Payment of Certain Legal Fees of K&L Gates LLP.  GGP shall pay, or cause to be
paid, the reasonable legal fees of K&L Gates LLP in connection with the
Transactions, but only to the extent such fees are incurred on or prior to the
Plan Effective Date and set forth on an itemized invoice delivered to GGP; provided,
however, that the aggregate payment obligation of the GGP Group with
respect to this Section 2.11 shall not exceed a cap of $600,000,
and any payment obligations in excess of such cap shall be borne by the Spinco
Group.


 


2.12                           Mechanics’ and
Materialman’s Liens.  In connection with any financing, sale or other
transfer involving all or any portion of any Asset of any member of the Spinco
Group, GGP shall, promptly following request by Spinco, bond off, cause the
removal from record of or otherwise address in a commercially reasonable
manner, which is reasonably acceptable to Spinco, to the applicable lender,
purchaser or other transferee, and to any title insurance company involved in
such financing, sale or other transfer, any mechanics’ or materialmans’ liens
affecting such Asset for which GGP is responsible for payment pursuant to the
terms of this Agreement.  Notwithstanding
the foregoing, in the event that GGP chooses to bond off any such lien, GGP may
request that Spinco be responsible for such bonding process, in which event GGP
agrees to promptly reimburse Spinco for all actual third party costs incurred
by Spinco or by any member of the Spinco Group in connection therewith.


 


2.13                           Disclaimer of Representations and Warranties.  EACH OF GGP (ON BEHALF OF ITSELF
AND EACH MEMBER OF THE GGP GROUP) AND SPINCO (ON BEHALF OF ITSELF AND EACH
MEMBER OF THE SPINCO GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY
SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, NO PARTY TO THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT OR DOCUMENT
CONTEMPLATED BY THIS AGREEMENT, OR OTHERWISE, IS REPRESENTING OR
WARRANTING TO ANY OTHER PARTY HERETO OR THERETO IN ANY WAY AS TO 


 


24














 


THE ASSETS, BUSINESSES
OR LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO
ANY APPROVALS OR NOTIFICATIONS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS
TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER
CONCERNING, ANY ASSETS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR
RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR
OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE
LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT
DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE
EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF.  EXCEPT AS MAY EXPRESSLY BE SET FORTH IN
THIS AGREEMENT OR IN ANY TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING
TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL
PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND
THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT
(I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE
TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND
(II) ANY NECESSARY APPROVALS OR NOTIFICATIONS ARE NOT OBTAINED OR MADE OR
THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.


 


ARTICLE III


 


THE
DISTRIBUTION


 


3.1                                 Actions on or Prior to the Plan Effective Date.  Prior to the Distribution, the
following shall occur:


 


(a)                                  Listing.  Spinco shall prepare, file and pursue an
application to permit listing of the Spinco Common Stock on the New York Stock
Exchange.


 


(b)                                 Bankruptcy.  The Bankruptcy Court shall have entered an
order confirming the Plan and there shall not be a stay or injunction (or
similar prohibition) in effect with respect to such order.


 


(c)                                  Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws.  (i) GGP and Spinco shall each take all
necessary action that may be required to provide for the adoption by Spinco of
the Amended and Restated Certificate of Incorporation of Spinco in substantially
the form attached to the Plan (the “Amended and Restated Certificate of
Incorporation”), and the Amended and Restated Bylaws of Spinco in
substantially the form attached to the Plan (the “Amended and Restated
Bylaws”) and (ii) Spinco shall file the Amended and Restated
Certificate of Incorporation of Spinco with the Secretary of State of the State
of Delaware.


 


(d)                                 The Distribution Agent.  GGP shall enter into a distribution agent
agreement with the Distribution Agent or otherwise provide instructions to the
Distribution Agent regarding the Distribution.


 


25

















 


(e)                                  Stock-Based Employee Benefit Plans.  At or prior to the Effective Time, GGP and
Spinco shall take all actions as may be necessary to approve the stock-based
employee benefit plans of Spinco in order to satisfy the requirements of Rule 16b-3
under the Exchange Act and the applicable rules and regulations of the New
York Stock Exchange.


 


3.2                                 Conditions Precedent to Distribution.  In no event shall the Distribution occur
unless each of the following conditions shall have been satisfied (or waived by
GGP, in whole or in part, in its sole discretion):


 


(a)                                  the Restructuring shall have been completed in accordance with the Plan;


 


(b)                                 the Plan Effective Date shall have occurred;


 


(c)                                  the Private Letter Ruling shall have been received and shall not have
been revoked or modified in any material respect;


 


(d)                                 the Form 10 filed with the SEC shall have been declared effective by
the SEC, no stop order suspending the effectiveness of the Form 10 shall
be in effect, no proceedings for such purpose shall be pending before or
threatened by the SEC;


 


(e)                                  the Spinco Common Stock to be delivered in the Distribution shall have
been approved for listing on the New York Stock Exchange, subject to official
notice of issuance;


 


(f)                                    each of the other Transaction Documents shall have been duly executed and
delivered by the parties thereto;


 


(g)                                 no order, injunction or decree issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing consummation of
the Distribution or any of the transactions related thereto, including the
Restructuring, shall be in effect;


 


(h)                                 prior to the Distribution, all of GGP’s representatives or designees shall
have resigned or been removed as officers from all members of the Spinco Group,
and all of Spinco’s representatives or designees shall have resigned or been
removed as officers from all members of the GGP Group;


 


(i)                                     the designees of REP Investments LLC (or its affiliates) and Pershing
Square Capital Management, L.P. (or its affiliates), as set forth in the
Cornerstone Investment Agreement and the Pershing Investment Agreement, shall
have been appointed to the to the board of directors of Spinco; and


 


(j)                                     no event or development shall have occurred or exist that, in the
judgment of the board of directors of GGP, in its sole discretion, makes it
inadvisable to effect the Restructuring, the Distribution or the other
transactions contemplated hereby.


 


Each
of the foregoing conditions is for the sole benefit of GGP and shall not give
rise to or create any duty on the part of GGP or its board of directors to
waive or not to waive any such condition or to effect the Restructuring and the
Distribution, or in any way limit GGP’s rights of 


 


26

















 


termination set forth in this Agreement.  Any determination made by GGP prior to the
Distribution concerning the satisfaction or waiver of any or all of the
conditions set forth in this Section 3.2 shall be conclusive and
binding on the parties.


 


3.3                                 The Distribution.


 


(a)                                  Subject to the terms and conditions set forth in this Agreement and the
Plan, (i) on or prior to the Plan Effective Date, GGP shall deliver to the
Distribution Agent for the benefit of holders of record of GGP Common Shares on
the Record Date, book-entry transfer authorizations for such number of the
issued and outstanding shares of Spinco Common Stock necessary to effect the
Distribution, (ii) the Distribution shall be effective at the Effective
Time and (iii) GGP shall instruct the Distribution Agent to distribute, on
or as soon as practicable after the Effective Time, to each holder of record of
GGP Common Shares as of the Record Date, by means of a pro rata distribution,
0.0983 shares of Spinco Common Stock for every one (1) GGP Common Share; provided,
however, that no fractional shares shall be issued.  Following the Plan Effective Date, Spinco
agrees to provide all book-entry transfer authorizations for shares of Spinco
Common Stock that GGP or the Distribution Agent shall require (after giving
effect to Section 3.4) in order to effect the Distribution.


 


(b)                                 Notwithstanding anything to the contrary contained in this Agreement, GGP
shall, in its sole and absolute discretion, determine the Plan Effective Date
and all terms of the Distribution, including the form, structure and terms of
any transactions and/or offerings to effect the Distribution and the timing of
and conditions to the consummation thereof. 
In addition, GGP may at any time and from time to time until the
completion of the Distribution decide to abandon the Distribution or modify or
change the terms of the Distribution, including by accelerating or delaying the
timing of the consummation of all or part of the Distribution.


 


(c)                                  The parties agree that this Agreement constitutes a “plan of
reorganization” within the meaning of Treasury Regulation Section 1.368-2(g).


 


(d)                                 The parties agree that the steps of the Spinoff Plan shall be effected in
the order and manner prescribed in the Spinoff Plan and the occurrence of each
step shall be conditioned upon the completion of the preceding step.


 


3.4                                 GGP Authorization of Agreement.  GGP has all requisite power, authority and
legal capacity to execute and deliver this Agreement and each other Transaction
Document to be executed by GGP in connection with the consummation of
Distribution, and to consummate the transactions contemplated hereby and
thereby.  The execution, delivery and
performance of this Agreement and each of the Transaction Documents, and the
consummation of the transactions contemplated hereby and thereby, have been
duly authorized and approved by all required action on the part of GGP.  This Agreement has been, and each of the
Transaction Documents will be at or prior to the Closing, duly and validly
executed and delivered by GGP and (assuming due authorization, execution and
delivery by Spinco) this Agreement constitutes, and each of the Transaction
Documents when so executed and delivered will constitute, legal, valid and
binding obligations of GGP, enforceable against GGP in accordance with its
terms.


 


27

















 


ARTICLE IV


 


ACCESS
TO INFORMATION


 


4.1                                 Agreement for Exchange of Information; Archives.


 


(a)                                  After the Effective Time (or such earlier time as the parties may agree)
and until the fifth (5th) anniversary of the date of this Agreement, each of
GGP and Spinco, on behalf of its respective Group, agrees to provide, or cause
to be provided, to the other Group, as soon as reasonably practicable after
written request therefor, any Information in the possession or under the
control of such respective Group which the requesting party reasonably needs
(i) to comply with reporting, disclosure, filing or other requirements
imposed on the requesting party (including under applicable securities Laws) by
a Governmental Authority having jurisdiction over the requesting party, (ii) to
carry out its human resources functions or to establish, assume or administer its
benefit plans or payroll functions, (iii) in order to satisfy audit,
accounting or other similar requirements (except as otherwise provided in Section 4.1(d)),
or (iv) to comply with its obligations under this Agreement or any other
Transaction Document; provided, however, that in the event that
any party determines that any such provision of Information could be
commercially detrimental, violate any Law or agreement, or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.


 


(b)                                 After the Effective Time (or such earlier time as the parties may agree)
and until the fifth (5th) anniversary of the date of this Agreement, (i) Spinco
and its authorized accountants, counsel and other designated representatives
shall have access during regular business hours (as in effect from time to
time) to the documents and objects of historic significance that relate to the
Spinco Business that are located in archives retained or maintained by any
member of the GGP Group, and (ii) Spinco may obtain copies (but not
originals unless it is a Spinco Asset) of documents for bona fide business
purposes and may obtain objects for exhibition purposes for commercially
reasonable periods of time if required for such bona fide business purposes; provided,
that Spinco shall cause any such objects to be returned promptly in the same
condition in which they were delivered to Spinco and Spinco shall comply with any
rules, procedures or other requirements, and shall be subject to any
restrictions (including prohibitions on removal of specified objects), that are
then applicable to GGP; provided, further, that, notwithstanding
any provisions of this Section 4.1(b), any request for Information
or access to Representatives in connection with any Third Party Claims shall be
subject to Section 4.7. 
Nothing herein shall be deemed to restrict the access of any member of
the GGP Group to any such documents or objects or to impose any liability on
any member of the GGP Group if any such documents or objects are not maintained
or preserved by GGP.


 


(c)                                  After the Effective Time (or such earlier time as the parties may agree)
and until the fifth (5th) anniversary of the date of this Agreement, (i) GGP
and its authorized accountants, counsel and other designated representatives
shall have access during regular business hours (as in effect from time to
time) to the documents and objects of historic significance that relate to the
GGP Business that are located in archives retained or maintained by any member
of the Spinco Group and (ii) GGP may obtain copies (but not originals
unless it is not a Spinco Asset) of documents for bona fide business purposes
and may obtain objects for 


 


28

















 


exhibition purposes for
commercially reasonable periods of time if required for such bona fide business
purposes; provided, that GGP shall cause any such objects to be returned
promptly in the same condition in which they were delivered to GGP and GGP
shall comply with any rules, procedures or other requirements, and shall be
subject to any restrictions (including prohibitions on removal of specified
objects), that are then applicable to Spinco; provided, further,
that, notwithstanding any provisions of this Section 4.1(c), any
request for Information or access to Representatives in connection with any
Third Party Claims shall be subject to Section 4.7.  Nothing herein shall be deemed to restrict
the access of any member of the Spinco Group to any such documents or objects
or to impose any liability on any member of the Spinco Group if any such
documents or objects are not maintained or preserved by Spinco.


 


(d)                                 Without limiting the generality of the foregoing, until the second (2nd)
Spinco fiscal year end occurring after the Effective Time (and for a reasonable
period of time afterwards as required for each of GGP and Spinco to prepare
consolidated financial statements or complete a financial statement audit for
the fiscal year during which the Plan Effective Date occurs), each of GGP and
Spinco shall use its commercially reasonable efforts to cooperate with the
other party’s Information requests to enable (i) the other party to meet
its timetable for dissemination of its earnings releases, financial statements
and management’s assessment of the effectiveness of its disclosure controls and
procedures and its internal control over financial reporting in accordance with
Items 307 and 308, respectively, of Regulation S-K, and (ii) the other
party’s accountants to timely complete their review of the quarterly financial
statements and audit of the annual financial statements, including, to the
extent applicable to such party, its auditor’s audit of its internal control
over financial reporting and management’s assessment thereof in accordance with
Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC’s and Public
Company Accounting Oversight Board’s rules and auditing standards
thereunder.


 


4.2                                 Ownership of Information.  Any Information owned by one Group that is
provided to a requesting party pursuant to Section 4.1 shall be
deemed to remain the property of the providing party, except where such
Information is an Asset of the requesting party pursuant to the provisions of
this Agreement or any other Transaction Document.  Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any Information requested or provided pursuant to Section 4.1.


 


4.3                                 Compensation for Providing Information.  The party requesting Information agrees to
reimburse the other party for the reasonable out-of-pocket costs and expenses,
if any, of creating, gathering and copying such Information (including any
costs and expenses incurred in any review of Information for purposes of
protecting the privileged Information of the providing party or in connection
with the restoration of backup tapes for purposes of providing the requested
Information), to the extent that such costs are incurred in connection with
such other party’s provision of Information in response to the requesting
party.


 


4.4                                 Record Retention.


 


(a)                                  To facilitate the possible exchange of Information pursuant to this Article IV
and other provisions of this Agreement after the Effective Time, the parties
agree to use their commercially reasonable efforts to retain all Information in
their respective possession or control in accordance with the policies or
ordinary course practices of GGP or Spinco, as 


 


29

















 


applicable, in effect
on the Plan Effective Date (including any Information that is subject to a
“Litigation Hold” issued by either party prior to the Plan Effective Date) or
such other policies or practices as may be reasonably adopted by the
appropriate party after the Effective Time.


 


(b)                                 Except in accordance with its, or its applicable Subsidiaries’, policies
and ordinary course practices, no party will destroy, or permit any of its
Subsidiaries to destroy, any Information that would, in accordance with such
policies or ordinary course practices, be archived or otherwise filed in a
centralized filing system by such party or its applicable Subsidiaries; provided,
however, that (i) in the case of any Information relating to
employee benefits, no party will destroy, or permit any of its Subsidiaries to
destroy, any such Information until the expiration of the applicable statute of
limitations (giving effect to any extensions thereof), (ii) in the case of
any Information relating to a pending or threatened Action (including any
pending or threatened investigation by a Governmental Authority) that is known
to the members of the Group in possession of such Information, the parties
shall comply with the requirements of the applicable “Litigation Hold” (provided,
that, with respect to any pending or threatened Action arising after the Plan
Effective Date, the requirements of this clause (ii) shall apply only to
the extent that whichever member of the GGP Group or the Spinco Group that is
in possession of such Information has been notified in writing pursuant to a
“Litigation Hold” by the other party of such pending or threatened Action) and
(iii) no party will destroy, or permit any of its Subsidiaries to destroy,
any Information required to be retained by applicable Law.


 


(c)                                  In the event of either party’s or any of its Subsidiaries’ inadvertent
failure to comply with its applicable document retention policies as required
under this Section 4.4, such party shall be liable to the other
party solely for the amount of any monetary fines or penalties imposed or
levied against such other party by a Governmental Authority (which fines or penalties shall not include
any Liabilities asserted in connection with the claims underlying the
applicable Action, other than fines or penalties resulting from any claim of
spoliation) as a result of such other party’s inability to produce
Information caused by such inadvertent failure and, notwithstanding Sections
5.2 and 5.3, shall not be liable to such other party for any other
Liabilities.


 


4.5                                 Liability.  No party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this Agreement which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate in the absence of willful
misconduct by the party providing such Information.


 


4.6                                 Other Agreements Providing for Exchange of Information.


 


(a)                                  The rights and obligations granted under this Article IV are
subject to any specific limitations, qualifications or additional provisions on
the sharing, exchange, retention or confidential treatment of Information set
forth in any other Transaction Document.


 


(b)                                 Any party that receives, pursuant to a request for Information in
accordance with this Article IV, Information that is not
relevant to its request shall (i) either destroy such Information or
return it to the providing party and (ii) deliver to the providing party a
certificate certifying that such Information was destroyed or returned, as the
case may be, 


 


30

















 


which certificate shall
be signed by an officer of the requesting party holding the title of vice
president or above.


 


(c)                                  When any Information provided by one Group to the other (other than
Information provided pursuant to Section 4.4) is no longer needed
for the purposes contemplated by this Agreement or any other Transaction
Document and is no longer required to be retained by applicable Law, the
receiving party will promptly after request of the other party either return to
the other party all Information in a tangible form (including all copies
thereof and all notes, extracts or summaries based thereon) or certify to the
other party that it has destroyed such Information (and such copies thereof and
such notes, extracts or summaries based thereon).


 


(d)                                 The parties agree to comply with the requirements of the Health Insurance
Portability and Accountability Act of 1996, as amended, in connection with the
sharing of Information pursuant to this Article IV, including by
entering into any business associate agreements that may be required for such
compliance.


 


4.7                                 Production of Witnesses; Records; Cooperation.


 


(a)                                  After the Effective Time (or such earlier time as the parties may agree),
except in the case of an adversarial Action by one party against another party,
each party hereto shall use its commercially reasonable efforts to make
available to each other party, upon written request, the former, current and
future directors, officers, employees, other personnel and agents of the
members of its respective Group as witnesses and any books, records or other
documents within its control or which it otherwise has the ability to make available,
to the extent that any such person (giving consideration to business demands of
such directors, officers, employees, other personnel and agents) or books,
records or other documents may reasonably be required in connection with any
Action or IP Application in which the requesting party may from time to time be
involved, regardless of whether such Action or IP Application is a matter with
respect to which indemnification may be sought hereunder.  The requesting party shall bear all
out-of-pocket costs and expenses in connection therewith.


 


(b)                                 If an Indemnifying Party chooses to defend or to seek to compromise or
settle any Third Party Claim, the Indemnified Party shall use commercially
reasonable efforts to make available to such Indemnifying Party, upon written
request, the former, current and future directors, officers, employees, other
personnel and agents of the members of its respective Group as witnesses and
any books, records or other documents within its control or which it otherwise
has the ability to make available, to the extent that any such persons (giving
consideration to business demands of such directors, officers, employees, other
personnel and agents) or books, records or other documents may reasonably be
required in connection with such defense, settlement or compromise, or the
prosecution, evaluation or pursuit thereof, as the case may be, and shall
otherwise cooperate in such defense, settlement or compromise, or such
prosecution, evaluation or pursuit, as the case may be.  The Indemnifying Party shall bear all
out-of-pocket costs and expenses in connection therewith.


 


(c)                                  In furtherance and without limiting the provisions of Sections 4.7(a) and
(b), the parties shall cooperate and consult to the extent reasonably
necessary with respect to (i) any Third Party Claims and (ii) any
written request for access to Information or 


 


31

















 


Representatives of the
other party and members of such other party’s Group in connection with any
Third Party Claim; provided that such request shall sufficiently identify the
applicable custodian of the requested Information and, to the extent known to
the requesting party, the date of, or any applicable time periods relating to,
the requested Information and any other descriptions necessary to sufficiently
identify the requested Information.


 


(d)                                 Without limiting any provision of this Section 4.7, each of
the parties agrees to reasonably cooperate, and to cause each member of its
respective Group to reasonably cooperate, with each other in the defense of any
infringement, misappropriation or similar claim with respect to any
Intellectual Property and shall not claim to acknowledge, or permit any member
of its respective Group to claim to acknowledge, the validity, enforceability
or misappropriation of any Intellectual Property of a third Person in a manner
that would hamper or undermine the defense of such infringement,
misappropriation or similar claim except as required by Law.


 


(e)                                  The obligation of the parties to provide witnesses pursuant to this Section 4.7
is intended to be interpreted in
a manner so as to facilitate cooperation and shall include the obligation to
provide as witnesses inventors and other officers without regard to whether the
witness or the employer of the witness could assert a possible business
conflict (subject to the exception set forth in the first (1st) sentence of Section 4.7(a)).


 


(f)                                    In connection with any matter contemplated by this Section 4.7,
the parties will enter into a mutually acceptable joint defense agreement so as
to maintain to the extent practicable any applicable attorney-client privilege,
work product immunity or other applicable privileges or immunities of any
member of any Group.


 


(g)                                 For the avoidance of doubt, the provisions of this Section 4.7
are in furtherance of the provisions of Section 4.1 and shall not
be deemed to in any way limit or otherwise modify the parties’ rights and
obligations under Section 4.1.


 


4.8                                 Privileged Matters.


 


(a)                                  The parties recognize that legal and other professional services that
have been and will be provided prior to the Effective Time have been and will
be rendered for the collective benefit of each of the members of the GGP Group
and the Spinco Group, and that each of the members of the GGP Group and the
Spinco Group should be deemed to be the client with respect to such services
for the purposes of asserting all privileges which may be asserted under
applicable Law in connection therewith. 
The parties recognize that legal and other professional services will be
provided following the Effective Time, which services will be rendered solely
for the benefit of the GGP Group or the Spinco Group, as the case may be.


 


(b)                                 The parties agree as follows:


 


(i)                                     GGP shall be entitled, in perpetuity, to control the assertion or waiver
of all privileges in connection with any privileged Information that relates
solely to the GGP Business and not to the Spinco Business, whether or not the
privileged Information is in the possession or under the control of any member
of the GGP Group or any member of the Spinco Group. GGP shall also be entitled,
in perpetuity, to control the assertion or waiver of all 


 


32

















 


privileges in
connection with any privileged Information that relates solely to any Excluded
Liabilities resulting from any Actions that are now pending or may be asserted
in the future, whether or not the privileged Information is in the possession
or under the control of any member of the GGP Group or any member of the Spinco
Group; and


 


(ii)                                  Spinco shall be entitled, in perpetuity, to control the assertion or
waiver of all privileges in connection with any privileged Information that
relates solely to the Spinco Business and not to the GGP Business, whether or
not the privileged Information is in the possession or under the control of any
member of the Spinco Group or any member of the GGP Group. Spinco shall also be
entitled, in perpetuity, to control the assertion or waiver of all privileges
in connection with any privileged Information that relates solely to any Spinco
Liabilities resulting from any Actions that are now pending or may be asserted
in the future, whether or not the privileged Information is in the possession
or under the control of any member of the Spinco Group or any member of the GGP
Group.


 


(c)                                  Subject to the restrictions set forth in this Section 4.8,
the parties agree that they shall have a shared privilege, each with equal
right to assert any such shared privilege, with respect to all privileges not
allocated pursuant to Section 4.8(b) and all privileges
relating to any Actions or other matters that involve both the GGP Group and
the Spinco Group and in respect of which both parties have Liabilities under
this Agreement.


 


(d)                                 Subject to Sections 4.8(e) and (f), no party may waive
any privilege that could be asserted under any applicable Law, and in which the
other party has a shared privilege, without the consent of the other party,
which consent shall (i) not be unreasonably withheld, conditioned or
delayed, (ii) be in writing and (iii) be deemed to be granted unless
written objection is made within twenty (20) days after notice has been
given to the other party requesting such consent.


 


(e)                                  In the event of any Actions between GGP and Spinco, or any members of
their respective Groups, either party may waive a privilege in which the other
party or member of such other party’s Group has a shared privilege, without
obtaining consent pursuant to Section 4.8(d); provided, that
such waiver of a shared privilege shall be effective only as to the use of
Information with respect to the Action between the parties and/or the
applicable members of their respective Groups, and shall not operate as a
waiver of the shared privilege with respect to any third Person.


 


(f)                                    If any dispute arises between GGP and Spinco, or any members of their
respective Groups, regarding whether a privilege should be waived to protect or
advance the interests of either the GGP Group or the Spinco Group, each party
agrees that it shall (i) negotiate with the other party in good faith,
(ii) endeavor to minimize any prejudice to the rights of the other party
and (iii) not unreasonably withhold, condition or delay consent to any
request for waiver by the other party. 
Further, each party specifically agrees that it will not withhold its
consent to the waiver of a privilege for any purpose except to protect its own
legitimate interests.


 


(g)                                 Upon receipt by either party, or by any member of its respective Group,
of any subpoena, discovery or other request that may reasonably be expected to
result in the production or disclosure of Information subject to a shared
privilege or as to which another party 


 


33

















 


has the sole right
hereunder to assert a privilege, or if either party obtains knowledge that any
of its, or any member of its respective Group’s, current or former directors,
officers, agents or employees have received any subpoena, discovery or other
requests that may reasonably be expected to result in the production or
disclosure of such privileged Information, such party shall promptly notify the
other party of the existence of the request (which notice shall be delivered to
such other party no later than five (5) business days following the
receipt of any such subpoena, discovery or other request) and shall provide the
other party a reasonable opportunity to review the Information and to assert
any rights it or they may have under this Section 4.8 or otherwise
to prevent the production or disclosure of such privileged Information.


 


(h)                                 The transfer of all Information pursuant to this Agreement is made in
reliance on the agreement of GGP and Spinco set forth in this Section 4.8
and in Section 6.2 to maintain the confidentiality of privileged
Information and to assert and maintain all applicable privileges.  The parties agree that their respective
rights to any access to Information, witnesses and other Persons, the
furnishing of notices and documents and other cooperative efforts between the
parties contemplated by this Agreement, and the transfer of privileged
Information between the parties and members of their respective Groups pursuant
to this Agreement, shall not be deemed a waiver of any privilege that has been
or may be asserted under this Agreement or otherwise.


 


(i)                                     In furtherance of the parties’ agreement under this Section 4.8,
GGP and Spinco shall, and shall cause applicable members of their respective
Group to, maintain their respective separate and joint privileges, including by
executing joint defense and common interest agreements where necessary or
useful for this purpose.


 


ARTICLE V


 


RELEASE;
INDEMNIFICATION; AND GUARANTEES


 


5.1                                 Release of Pre-Distribution Claims.


 


(a)                                  Except as provided in (i) Section 5.1(c), (ii) any
exceptions to the indemnification provisions of Sections 5.2, 5.3
and 5.4, and (iii) any other Transaction Document, effective as of
the Effective Time, Spinco does hereby, for itself and each other member of the
Spinco Group, their respective Subsidiaries, successors and assigns, and all
Persons who at any time prior to the Effective Time have been directors,
officers, agents or employees of any member of the Spinco Group (in each case,
in their respective capacities as such), remise, release and forever discharge
GGP and the other members of the GGP Group, their respective Subsidiaries,
successors and assigns, and all Persons who at any time prior to the Effective
Time have been stockholders, equityholders, directors, officers, agents or
employees of any member of the GGP Group (in each case, in their respective
capacities as such), and their respective heirs, executors, administrators,
successors and assigns, from any and all Liabilities whatsoever, whether at Law
or in equity (including any right of contribution), whether arising under any
Contract or agreement, by operation of Law or otherwise, existing or arising
from any acts or events occurring or failing to occur or alleged to have
occurred or to have failed to occur or any conditions existing or alleged to
have existed on or before the Plan Effective Date, including in connection with
the Bankruptcy Cases, the Plan, the transactions and all other 


 


34














 


activities to implement
the Restructuring, the Distribution and any of the other transactions
contemplated hereunder and under the other Transaction Documents.


 


(b)                                 Except as provided in (i) Section 5.1(c), (ii) any
exceptions to the indemnification provisions of Sections 5.2, 5.3
and 5.4, and (iii) any other Transaction Document, effective as of
the Plan Effective Date, GGP does hereby, for itself and each other member of
the GGP Group, their respective Subsidiaries, successors and assigns, and all
Persons who at any time prior to the Effective Time have been stockholders,
directors, officers, agents or employees of any member of the GGP Group (in
each case, in their respective capacities as such), remise, release and forever
discharge Spinco, the respective members of the Spinco Group, their respective
Subsidiaries, successors and assigns, and all Persons who at any time prior to
the Effective Time have been directors, officers, agents or employees of any
member of the Spinco Group (in each case, in their respective capacities as
such), and their respective heirs, executors, administrators, successors and
assigns, from any and all Liabilities whatsoever, whether at Law or in equity
(including any right of contribution), whether arising under any Contract or
agreement, by operation of Law or otherwise, existing or arising from any acts
or events occurring or failing to occur or alleged to have occurred or to have
failed to occur or any conditions existing or alleged to have existed on or
before the Plan Effective Date, including in connection with the Bankruptcy
Cases, the Plan, the transactions and all other activities to implement the
Restructuring, the Distribution and any of the other transactions contemplated
hereunder and under the other Transaction Documents.


 


(c)                                  Nothing contained in Section 5.1(a) or Section 5.1(b) shall
impair any right of any party to enforce this Agreement, or any other
Transaction Document, in accordance with its terms.  Nothing contained in Section 5.1(a) or
Section 5.1(b) shall release any Person from:


 


(i)                                     any Liability, contingent or otherwise, assumed, transferred, assigned or
allocated to the Group of which such Person is a member in accordance with, or
any other Liability of any member of any Group under, this Agreement or any
other Transaction Document;


 


(ii)                                  any Liability for the sale, lease, construction or receipt of goods,
property or services purchased, obtained or used in the ordinary course of
business by a member of one Group from a member of the other Group prior to the
Effective Time;


 


(iii)                               any Liability that the parties may have with respect to indemnification
or contribution pursuant to this Agreement or otherwise for claims brought
against the parties by third Persons, which Liability shall be governed by the
provisions of this Article V and, if applicable, the appropriate
provisions of the other Transaction Documents; or


 


(iv)                              as to the GGP Group, any Liability expressly provided for in the Plan.


 


In
addition, nothing contained in Section 5.1(a) shall release
GGP from indemnifying any director, officer or employee of Spinco who was a
director, officer or employee of GGP or any of its Subsidiaries on or prior to
the Effective Time, to the extent such 


 


35

















 


director, officer or employee is or becomes a
named defendant in any Action with respect to which he or she was entitled to
such indemnification pursuant to then existing obligations, it being understood
that if the underlying obligation giving rise to such Action is a Spinco
Liability, Spinco shall indemnify GGP for such Liability (including GGP’s costs
to indemnify the director, officer or employee) in accordance with the
provisions set forth in this Article V.


 


(d)                                 Spinco shall not make, and shall not permit any member of the Spinco
Group to make, any claim or demand, or commence any Action asserting any claim
or demand, including any claim of contribution or any indemnification, against
GGP or any member of the GGP Group, or any other Person released pursuant to Section 5.1(a),
with respect to any Liabilities released pursuant to Section 5.1(a).  GGP shall not, and shall not permit any
member of the GGP Group, to make any claim or demand, or commence any Action
asserting any claim or demand, including any claim of contribution or any
indemnification against Spinco or any member of the Spinco Group, or any other
Person released pursuant to Section 5.1(b), with respect to any
Liabilities released pursuant to Section 5.1(b).


 


(e)                                  It is the intent of each of GGP and Spinco, by virtue of the provisions
of this Section 5.1, to provide for a full and complete release and
discharge of all Liabilities existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed on or before the
Plan Effective Date, between or among Spinco or any member of the Spinco Group,
on the one hand, and GGP or any member of the GGP Group, on the other hand
(including any contractual agreements or arrangements existing or alleged to
exist between or among any such members on or before the Plan Effective Date),
except as expressly set forth in Section 5.1(c).  At any time, at the request of any other
party, each party shall cause each member of its respective Group to execute
and deliver releases reflecting the provisions hereof.


 


5.2                                 General Indemnification by Spinco.  Spinco shall, and shall cause the other
members of the Spinco Group to, indemnify, defend and hold harmless each member
of the GGP Group and each of their respective directors, officers and
employees, and each of the heirs, executors, successors and assigns of any of
the foregoing (collectively, the “GGP Indemnified Parties”), from and
against any and all Liabilities of the GGP Indemnified Parties relating to,
arising out of or resulting from any of the following items (without
duplication):


 


(a)                                  any Spinco Liability;


 


(b)                                 the failure of Spinco or any other member of the Spinco Group or any
other Person to pay, perform or otherwise promptly discharge any Spinco
Liabilities or Spinco Contract in accordance with its respective terms, whether
prior to or after the Effective Time;


 


(c)                                  any guarantee, indemnification obligation, surety bond or other credit
support agreement, arrangement, commitment or understanding by any member of
the GGP Group for the benefit of any member of the Spinco Group that survives
the Effective Time, except to the extent any of the foregoing is (i) expressly
governed by the Surety Bond Indemnity Agreement or (ii) an Excluded
Liability; and


 


36

















 


(d)                                 any breach (including any breach of any representation or warranty) of
this Agreement or any of the other Transaction Documents by any member of the
Spinco Group, or any action by Spinco in contravention of its Amended and
Restated Certificate of Incorporation or Bylaws as they exist at the Effective
Time;


 


provided, however, that the indemnification
provisions of this Section 5.2 shall not apply to the Transition
Services Agreement, the Tax Matters Agreement, the Employee Leasing Agreement
and the Subleases, which instead shall be subject to the indemnification
provisions contained therein.


 


5.3                                 General Indemnification by GGP.  GGP shall, and shall cause the other members
of the GGP Group to, indemnify, defend and hold harmless each member of the
Spinco Group and each of their respective directors, officers and employees,
and each of the heirs, executors, successors and assigns of any of the
foregoing (collectively, the “Spinco Indemnified Parties”), from and
against any and all Liabilities of the Spinco Indemnified Parties relating to,
arising out of or resulting from any of the following items (without
duplication):


 


(a)                                  any Excluded Liability;


 


(b)                                 the failure of any member of the GGP Group or any other Person to pay,
perform or otherwise promptly discharge any Excluded Liabilities, whether prior
to or after the Effective Time;


 


(c)                                  any guarantee, indemnification obligation, surety bond or other credit
support agreement, arrangement, commitment or understanding by any member of
the Spinco Group for the benefit of any member of the GGP Group that survives
the Effective Time, except to the extent any of the foregoing is a Spinco
Liability; and


 


(d)                                 any breach (including any breach of any representation or warranty) of
this Agreement or any of the other Transaction Documents by any member of the
GGP Group;


 


provided, however, that the indemnification
provisions of this Section 5.3 shall not apply to the Transition
Services Agreement, the Tax Matters Agreement, the Employee Leasing Agreement
and the Subleases, which instead shall be subject to the indemnification
provisions contained therein.


 


5.4                                 Disclosure Indemnification.


 


(a)                                  Spinco agrees to indemnify and hold harmless the GGP Indemnified Parties
and each Person, if any, who controls any member of the GGP Group within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all Liabilities (whether arising before
or after the Effective Time) out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in a Spinco Disclosure
Document, or arising out of or based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.


 


(b)                                 GGP agrees to indemnify and hold harmless the Spinco Indemnified Parties
and each Person, if any, who controls any member of the Spinco Group within the



 


37

















 


meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all Liabilities (whether arising before or after the
Effective Time) out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in a GGP Disclosure Document, or arising
out of or based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.


 


5.5                                 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.


 


(a)                                  Any Liability subject to indemnification or contribution pursuant to this
Article V, will be net of Insurance Proceeds that actually reduce
the amount of the Liability or Loss, as applicable.  Accordingly, the amount which any party (an “Indemnifying
Party”) is required to pay to any Person entitled to indemnification under
this Article V (an “Indemnified Party”) will be reduced
by any Insurance Proceeds theretofore actually recovered by or on behalf of the
Indemnified Party in respect of the related Liability.  If an Indemnified Party receives a payment
(an “Indemnity Payment”) required by this Agreement from an Indemnifying
Party in respect of any Liability and subsequently receives Insurance Proceeds,
then the Indemnified Party will pay to the Indemnifying Party an amount equal
to such Insurance Proceeds but not exceeding the amount of the Indemnity
Payment paid by the Indemnifying Party in respect of such Liability.


 


(b)                                 An insurer who would otherwise be obligated to pay any claim shall not be
relieved of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect
thereto.  The Indemnified Party shall use
its commercially reasonable efforts to seek to collect or recover any
third-party Insurance Proceeds (other than Insurance Proceeds under an
arrangement where future premiums are adjusted to reflect prior claims in
excess of prior premiums) to which the Indemnified Party is entitled in
connection with any Liability for which the Indemnified Party seeks
indemnification pursuant to this Article V; provided, that
the Indemnified Party’s inability to collect or recover any such Insurance
Proceeds shall not limit the Indemnifying Party’s obligations hereunder.


 


(c)                                  Subject to Section 5.7(e), any indemnity payment under this Article V
shall be increased to take into account any inclusion in income of the
Indemnified Party arising from the receipt of such indemnity payment and shall
be decreased to take into account any reduction in income of the Indemnified
Party arising from such indemnified Liability. 
For purposes hereof, any inclusion or reduction shall be determined (i) using
the highest marginal rates in effect at the time of the determination and
applicable to a corporate resident of Chicago, Illinois and (ii) assuming
that the Indemnified Party, including any entity that qualifies as a real
estate investment trust, will be liable for Taxes at such rate and has no Tax
Attributes at the time of the determination.


 


5.6                                 Procedures for Indemnification of Third Party Claims.


 


(a)                                  If an Indemnified Party receives written notice that a Person (including
any Governmental Authority) that is not a member of GGP Group or Spinco Group
has asserted any claim or commenced any Action (collectively, a “Third Party Claim”) that
may implicate an Indemnifying Party’s obligation to indemnify pursuant to Sections 5.2,
5.3 or 5.4, or any other 


 


38

















 


Section of this
Agreement or any other Transaction Document, the Indemnified Party shall
provide the Indemnifying Party written notice thereof as promptly as
practicable (and no later than twenty (20) days or sooner, if the nature of the
Third Party Claim so requires) after becoming aware of the Third Party
Claim.  Such notice shall describe the
Third Party Claim in reasonable detail and include copies of all notices and
documents (including court papers) received by the Indemnified Party relating
to the Third Party Claim. 
Notwithstanding the foregoing, the failure of an Indemnified Party to
provide notice in accordance with this Section 5.6(a) shall
not relieve an Indemnifying Party of its indemnification obligations under this
Agreement, except to the extent to which the Indemnifying Party is actually
prejudiced by the Indemnified Party’s failure to provide notice in accordance
with this Section 5.6(a).


 


(b)                                 Subject to this Section 5.6(b) and Section 5.6(c),
an Indemnifying Party may elect to defend (and seek to settle or compromise),
at its own expense and with its own counsel, any Third Party Claim.  Within thirty (30) days after the receipt of
notice from an Indemnified Party in accordance with Section 5.6(a) (or
sooner, if the nature of the Third Party Claim so requires), the Indemnifying
Party shall notify the Indemnified Party whether the Indemnifying Party will
assume responsibility for defending the Third Party Claim and shall specify any
reservations or exceptions to its defense. 
After receiving notice of an Indemnifying Party’s election to assume the
defense of a Third Party Claim, whether with or without any reservations or
exceptions with respect to such defense, an Indemnified Party shall have the
right to employ separate counsel and to participate in (but not control) the
defense, compromise, or settlement thereof, but the Indemnified Party shall be
responsible for the fees and expenses of its counsel and, in any event, shall
cooperate with the Indemnifying Party in such defense and make available to the
Indemnifying Party, at the Indemnifying Party’s expense, all witnesses,
information and materials in such Indemnified Party’s possession or under such
Indemnified Party’s control relating thereto as are reasonably required by the
Indemnifying Party.  If an Indemnifying
Party has elected to assume the defense of a Third Party Claim, whether with or
without any reservations or exceptions with respect to such defense, then such
Indemnifying Party shall be solely liable for all fees and expenses incurred by
it in connection with the defense of such Third Party Claim and shall not be
entitled to seek any indemnification or reimbursement from the Indemnified
Party for any such fees or expenses incurred during the course of its defense
of such Third Party Claim, regardless of any subsequent decision by the
Indemnifying Party to reject or otherwise abandon its assumption of such
defense.


 


(c)                                  Notwithstanding Section 5.6(b), if any Indemnified Party
shall in good faith determine that there is an actual conflict of interest if
counsel for the Indemnifying Party represented both the Indemnified Party and
Indemnifying Party, then the Indemnified Party shall have the right to employ
separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, and the Indemnifying Party shall bear the
reasonable fees and expenses of one (1) separate counsel for all
Indemnified Parties.


 


(d)                                 If an Indemnifying Party elects not to assume responsibility for
defending a Third Party Claim, or fails to notify an Indemnified Party of its
election within thirty (30) days after the receipt of notice from an
Indemnified Party as provided in Section 5.6(b), the Indemnified
Party may defend the Third Party Claim at the cost and expense of the
Indemnifying Party.  If the Indemnified
Party is conducting the defense against any such Third Party Claim, the
Indemnifying Party shall cooperate with the Indemnified Party in such defense
and make 


 


39

















 


available to the
Indemnified Party, at the Indemnifying Party’s expense, all witnesses,
information and materials in such Indemnifying Party’s possession or under such
Indemnifying Party’s control relating thereto as are reasonably required by the
Indemnified Party.


 


(e)                                  Without the prior written consent of any Indemnifying Party, which
consent shall not be unreasonably withheld, conditioned or delayed, no
Indemnified Party may settle or compromise, or seek to settle or compromise,
any Third Party Claim; provided, however, in the event that the
Indemnifying Party elects not to assume responsibility for defending a Third
Party Claim or fails to notify the Indemnified Party of its election within
thirty (30) days after the receipt of notice from the Indemnified Party as
provided in Section 5.6(b), the Indemnified Party shall have the
right to settle or compromise such Third Party Claim in its sole
discretion.  Without the prior written
consent of any Indemnified Party, which consent shall not be unreasonably
withheld, conditioned or delayed, no Indemnifying Party shall consent to the
entry of any judgment or enter into any settlement of any pending or threatened
Third Party Claim if such Indemnified Party is or could have been a party to
the pending or threatened Third Party Claim and could have sought indemnity
pursuant to this Section 5.6, unless such judgment or settlement is
solely for monetary damages, and provides for a full, unconditional and
irrevocable release of that Indemnified Party from all liability in connection
with the Third Party Claim.


 


5.7                                 Additional Matters.


 


(a)                                  Indemnification or contribution payments in respect of any Liabilities
for which an Indemnified Party is entitled to indemnification or contribution
under this Article V shall be paid by the Indemnifying Party to the
Indemnified Party as such Liabilities are incurred upon reasonable demand by
the Indemnified Party, including reasonably satisfactory documentation setting
forth the basis for the amount of such indemnification or contribution payment,
including documentation with respect to calculations made and consideration of
any Insurance Proceeds that actually reduce the amount of such
Liabilities.  The indemnity and
contribution agreements contained in this Article V shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Indemnified Party, (ii) the
knowledge by the Indemnified Party of Liabilities for which it might be
entitled to indemnification or contribution hereunder and (iii) any
termination of this Agreement.


 


(b)                                 Any claim on account of a Liability which does not result from a Third
Party Claim shall be asserted by written notice given by the Indemnified Party
to the applicable Indemnifying Party. 
Such Indemnifying Party shall have a period of thirty (30) days after
the receipt of such notice within which to respond thereto.  If such Indemnifying Party does not respond
within such thirty (30)-day period, such Indemnifying Party shall be deemed to
have refused to accept responsibility to make payment.  If such Indemnifying Party does not respond
within such thirty (30)-day period or rejects such claim in whole or in part,
such Indemnified Party shall be free to pursue such remedies as may be
available to such party as contemplated by this Agreement and the other
Transaction Documents without prejudice to its continuing rights to pursue
indemnification or contribution hereunder.


 


(c)                                  If payment is made by or on behalf of any Indemnifying Party to any
Indemnified Party in connection with any Third Party Claim, such Indemnifying
Party shall be 


 


40

















 


subrogated to and shall
stand in the place of such Indemnified Party as to any events or circumstances
in respect of which such Indemnified Party may have any right, defense or claim
relating to such Third Party Claim against any claimant or plaintiff asserting
such Third Party Claim or against any other Person.  Such Indemnified Party shall cooperate with
such Indemnifying Party in a reasonable manner, and at the cost and expense of
such Indemnifying Party, in prosecuting any subrogated right, defense or claim.


 


(d)                                 In an Action in which the Indemnifying Party is not a named defendant, if
either the Indemnified Party or Indemnifying Party shall so request, the
parties shall endeavor to substitute the Indemnifying Party for the named
defendant if they conclude that substitution is desirable and practical.  If such substitution or addition cannot be
achieved for any reason or is not requested, the named defendant shall allow
the Indemnifying Party to manage the Action as set forth in this Section 5.7(d),
and the Indemnifying Party shall fully indemnify the named defendant against
all costs of defending the Action (including court costs, sanctions imposed by
a court, attorneys’ fees, experts fees and all other external expenses), the
costs of any judgment or settlement, and the cost of any interest or penalties
relating to any judgment or settlement.


 


(e)                                  For all Tax purposes, GGP and Spinco agree to treat (i) any payment
required by this Agreement (other than payments with respect to interest
accruing after the Effective Time) as either a contribution by GGP to Spinco or
a distribution by Spinco to GGP, as the case may be, occurring immediately
prior to the Effective Time or as a payment of an assumed or retained
Liability, and (ii) any payment of interest as taxable or deductible, as
the case may be, to the party entitled under this Agreement to retain such payment
or required under this Agreement to make such payment, in either case except as
otherwise required by applicable Law.


 


5.8                                 Remedies Cumulative; Limitations of Liability.  The rights provided in this Article V
shall be cumulative and, subject to the provisions of Article VII,
shall not preclude assertion by any Indemnified Party of any other rights or
the seeking of any and all other remedies against any Indemnifying Party.  Notwithstanding the foregoing, neither Spinco
or its Subsidiaries, on the one hand, nor GGP or its Subsidiaries, on the other
hand, shall be liable to the other for any special, indirect, punitive,
exemplary, remote, speculative or similar damages in excess of compensatory
damages (collectively, “Special Damages”) of the other arising in
connection with the Transactions (provided, that any such liability with
respect to a Third Party Claim shall be considered direct damages).


 


5.9                                 Survival of Indemnities.  The rights and obligations of each of GGP and
Spinco and their respective Indemnified Parties under this Article V
shall survive the sale or other transfer by any party of any Assets or
businesses or the assignment by it of any Liabilities.


 


5.10                           Guarantees.


 


(a)                                  Except as otherwise specified in any other Transaction Document, on or
prior to the Effective Time or as soon as practicable thereafter, (i) GGP
shall (with the reasonable cooperation of the applicable member(s) of the
Spinco Group) use its commercially reasonable efforts to have any member(s) of
the Spinco Group removed as guarantor of or obligor for any Excluded Liability,
to the extent that they relate to Excluded Liabilities, and (ii)


 


41

















 


Spinco shall (with the
reasonable cooperation of the applicable member(s) of the GGP Group) use
its commercially reasonable efforts to have any member(s) of the GGP Group
removed as guarantor of or obligor for any Spinco Liability, to the extent that
they relate to Spinco Liabilities.


 


(b)                                 On or prior to the Effective Time, to the extent required to obtain a
release from a guarantee (a “Guarantee Release”):


 


(i)                                     of any member of the GGP Group, Spinco shall execute a guarantee
agreement in the form of the existing guarantee or such other form as is agreed
to by the relevant parties to such guarantee agreement, except to the extent
that such existing guarantee contains representations, covenants or other terms
or provisions either (A) with which Spinco would be reasonably unable to
comply or (B) which would be reasonably expected to be breached; and


 


(ii)                                  of any member of the Spinco Group, GGP shall execute a guarantee
agreement in the form of the existing guarantee or such other form as is agreed
to by the relevant parties to such guarantee agreement, except to the extent
that such existing guarantee contains representations, covenants or other terms
or provisions either (A) with which GGP would be reasonably unable to
comply or (B) which would be reasonably expected to be breached.


 


(c)                                  If GGP or Spinco is unable to obtain, or to cause to be obtained, any
such required removal as set forth in clauses (a) and (b) of this Section 5.10,
(i) the relevant member of the GGP Group or Spinco Group, as applicable,
that has assumed the Liability with respect to such guarantee shall indemnify
and hold harmless the guarantor or obligor for any Liability arising from or
relating thereto (in accordance with the provisions of this Article V)
and shall or shall cause one (1) of its Subsidiaries, as agent or
subcontractor for such guarantor or obligor to pay, perform and discharge fully
all the obligations or other Liabilities of such guarantor or obligor
thereunder, and (ii) each of GGP and Spinco, on behalf of themselves and
the members of their respective Groups, agree not to renew or extend the term
of, increase its obligations under, or transfer to a third Person, any loan,
guarantee, lease, Contract or other obligation for which the other party or
member of such party’s Group is or may be liable unless all obligations of such
other party and the other members of such party’s Group with respect thereto
are thereupon terminated by documentation reasonably satisfactory in form and
substance to such party; provided, however, with respect to
leases, in the event a Guarantee Release is not obtained and the relevant beneficiary
wishes to extend the term of such guaranteed lease, then such beneficiary shall
have the option of extending the term if it provides such security as is
reasonably satisfactory to the guarantor under such guaranteed lease.


 


42

















 


ARTICLE VI


 


OTHER
AGREEMENTS


 


6.1                                 Further Assurances.


 


(a)                                  In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties hereto will cooperate with each other and use
(and will cause their respective Subsidiaries to use) commercially reasonable
efforts, prior to, on and after the Plan Effective Date, to take, or to cause
to be taken, all actions, and to do, or to cause to be done, all things
reasonably necessary on its part under applicable Law or contractual
obligations to consummate and make effective the transactions contemplated by
this Agreement and the other Transaction Documents.


 


(b)                                 Without limiting the foregoing, prior to, on and after the Plan Effective
Date, each party hereto shall cooperate with the other parties, and without any
further consideration, but at the expense of the requesting party from and
after the Effective Time, to execute and deliver, or use its commercially
reasonable efforts to cause to be executed and delivered, all instruments,
including instruments of conveyance, assignment and transfer, and to obtain or
make any Approvals or Notifications from or with any Governmental Authority or
any other Person under any permit, license, agreement, indenture or other
instrument, and to take all such other actions as such party may reasonably be
requested to take by any other party hereto from time to time, consistent with
the terms of this Agreement and the other Transaction Documents, in order to
effectuate the provisions and purposes of this Agreement and the other
Transaction Documents and the transfers of the Spinco Assets and the assignment
and assumption of the Spinco Liabilities and the other transactions
contemplated hereby and thereby.  Without
limiting the foregoing, each party will, at the reasonable request, cost and
expense of any other party, take such other actions as may be reasonably
necessary to vest in such other party good and marketable title to the Assets
allocated to such party under this Agreement or any of the other Transaction
Documents, free and clear of any Security Interest.


 


(c)                                  At or prior to the Effective Time, GGP and Spinco in their respective
capacities as direct and indirect stockholders of their respective
Subsidiaries, shall each ratify any actions that are reasonably necessary or
desirable to be taken by Spinco or any other Subsidiary of GGP or Spinco, as
the case may be, to effectuate the transactions contemplated by this Agreement.


 


(d)                                 Upon a party’s written request of the other party regarding any
pre-existing and specifically identifiable database, spreadsheet or other
proprietary information that such requesting party determines in good faith is
reasonably necessary to operate its business in the manner it was operated
immediately prior to the Effective Time, the parties shall work in good faith
to enter into a reasonable and customary cross-licensing arrangement, or
another mutually agreeable arrangement, providing rights to use (but no
obligation to maintain or update) such requested information.


 


6.2                                 Confidentiality.


 


(a)                                  From and after the Effective Time, subject to Section 6.2(d) and
except as contemplated by or otherwise provided in this Agreement or any other
Transaction Document, without the prior written consent of Spinco (which may be
withheld in Spinco’s sole discretion), GGP shall not, and shall cause its
Subsidiaries and officers, directors, employees, and other agents and
representatives, including attorneys, agents, customers, suppliers,
contractors, consultants and other representatives of any Person providing
financing (collectively,


 


43

















 


“Representatives”),
not to, directly or indirectly, disclose, reveal, divulge or communicate to any
Person other than Representatives of such party or of its Subsidiaries who
reasonably need to know such information to provide services to any member of
the GGP Group, or use or otherwise exploit for its own benefit or for the
benefit of any third Person, any Spinco Confidential Information.  If any disclosures are made in connection
with providing services to any member of the GGP Group under this Agreement or
any other Transaction Document, then the Spinco Confidential Information so
disclosed shall be used for the sole purpose of performing such services.  GGP shall use the same degree of care to
prevent and restrain the unauthorized use or disclosure of the Spinco
Confidential Information by any of its Representatives as it currently uses for
its own confidential information of a like nature, but in no event less than a
reasonable standard of care.  For
purposes of this Section 6.2(a), any Information, material or
document exclusively relating to the Spinco Business that is furnished to, or
in the possession of, GGP, irrespective of the form of communication, and all
notes, analyses, compilations, forecasts, data, translations, studies,
memoranda or other documents prepared by GGP or its officers, directors and
Subsidiaries, that contain or otherwise reflect such information, material or
document, is herein referred to as “Spinco Confidential Information.”  Spinco Confidential Information does not
include, and there shall be no obligation hereunder with respect to,
information that (i) is or becomes generally available to the public, other
than as a result of a disclosure by GGP not otherwise permissible hereunder,
(ii) GGP can demonstrate was or became available to GGP from a source
other than Spinco or its Subsidiaries or (iii) is developed independently
by GGP without reference to the Spinco Confidential Information; provided,
however, that, in the case of clause (ii), the source of such
information was not known by GGP to be bound by a confidentiality agreement
with, or other contractual, legal or fiduciary obligation of confidentiality
to, Spinco or any member of the Spinco Group with respect to such information.


 


(b)                                 From and after the Effective Time, subject to Section 6.2(d) and
except as contemplated by this Agreement or any other Transaction Document,
without the prior written consent of GGP (which may be withheld in GGP’s sole
discretion), Spinco shall not, and shall cause its Subsidiaries and their
respective Representatives, not to, directly or indirectly, disclose, reveal,
divulge or communicate to any Person other than Representatives of such party
or of its Subsidiaries who reasonably need to know such information to provide
services to Spinco or any member of the Spinco Group, or use or otherwise
exploit for its own benefit or for the benefit of any third Person, any GGP Confidential
Information.  If any disclosures are made
in connection with providing services to any member of the Spinco Group under
this Agreement or any other Transaction Document, then the GGP Confidential
Information so disclosed shall be used for the sole purpose of performing such
services.  The Spinco Group shall use the
same degree of care to prevent and restrain the unauthorized use or disclosure
of the GGP Confidential Information by any of their Representatives as they
currently use for their own confidential information of a like nature, but in
no event less than a reasonable standard of care.  For purposes of this Section 6.2(b),
any Information, material or document exclusively relating to the businesses
currently or formerly conducted, or proposed to be conducted, by GGP or any of
its Subsidiaries (other than any member of the Spinco Group) that is furnished
to, or in the possession of, any member of the Spinco Group, irrespective of
the form of communication, and all notes, analyses, compilations, forecasts,
data, translations, studies, memoranda or other documents prepared by Spinco,
any member of the Spinco Group or their respective officers, directors and
Subsidiaries, that contain or otherwise reflect such information, material or
document, is herein referred to as 


 


44














 


“GGP Confidential
Information.”  GGP Confidential
Information does not include, and there shall be no obligation hereunder with
respect to, information that (i) is or becomes generally available to the
public, other than as a result of a disclosure by any member of the Spinco
Group not otherwise permissible hereunder, (ii) Spinco can demonstrate was
or became available to Spinco from a source other than GGP and its respective
Subsidiaries or (iii) is developed independently by such member of the
Spinco Group without reference to the GGP Confidential Information; provided,
however, that, in the case of clause (ii), the source of such
information was not known by Spinco to be bound by a confidentiality agreement
with, or other contractual, legal or fiduciary obligation of confidentiality
to, GGP or its Subsidiaries with respect to such information.


 


(c)                                  From and after the Effective Time, subject to Section 6.2(d) and
except as contemplated by this Agreement or any other Transaction Document,
without the prior written consent of the other party (not to be unreasonably
withheld, conditioned or delayed), each party shall not, and shall cause its
Subsidiaries and their respective Representatives, not to, directly or
indirectly, disclose, reveal, divulge or communicate any Shared Information to
any Person other than Representatives of such party or of its Subsidiaries who
reasonably need to know such information for the purpose of operating such
party’s business in its ordinary course. 
The GGP Group and the Spinco Group shall use the same degree of care to
prevent and restrain the unauthorized use or disclosure of the Shared
Information by any of their Representatives as they currently use for their own
confidential information of a like nature, but in no event less than a
reasonable standard of care.  For
purposes of this Section 6.2(c), any Information, material or
document relating to both (i) the businesses currently or formerly
conducted, or proposed to be conducted, by GGP or any of its Subsidiaries
(other than any member of the Spinco Group) and (ii) the Spinco Business
that is furnished to, or in the possession of, any member of the GGP Group or
any member of the Spinco Group, irrespective of the form of communication, and
all notes, analyses, compilations, forecasts, data, translations, studies,
memoranda or other documents prepared by, for or on behalf of the party
possessing such Information, material or document, is herein referred to as “Shared
Information.”  Shared Information
does not include, and there shall be no obligation hereunder with respect to,
information that (i) is or becomes generally available to the public,
other than as a result of a disclosure by any member of the GGP Group or any
member of the Spinco Group (as applicable) not otherwise permissible hereunder,
(ii) GGP or Spinco (as applicable) can demonstrate was or became available
to such party from a source other than the other party and its respective
Subsidiaries or (iii) is developed independently without reference to the
Shared Information; provided, however, that, in the case of
clause (ii), the source of such information was not known by such party to be
bound by a confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, the other party or its Subsidiaries
with respect to such information.


 


(d)                                 If GGP or its Subsidiaries, on the one hand, or Spinco or its
Subsidiaries, on the other hand, are requested or required (by oral question,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) by any Governmental Authority or
pursuant to applicable Law to disclose or provide any Shared Information
(applicable to both parties) or Spinco Confidential Information or GGP
Confidential Information (as applicable), the Person receiving such request or
demand shall use commercially reasonable efforts to provide the other party
with written notice of such request or demand as promptly as practicable under
the circumstances so that such other party shall have an 


 


45

















 


opportunity to seek an
appropriate protective order.  The party
receiving such request or demand agrees to take, and cause its representatives
to take, at the requesting party’s expense, all other reasonable steps
necessary to obtain confidential treatment by the recipient.  Subject to the foregoing, the party that
received such request or demand may thereafter disclose or provide any Shared
Information, Spinco Confidential Information or GGP Confidential Information,
as the case may be, to the extent required by such Law (as so advised by
counsel) or by lawful process or such Governmental Authority.  This Section 6.2(d) shall
not apply to any Information furnished pursuant to the provisions of Article IV
of this Agreement.


 


(e)                                  Each of GGP and Spinco acknowledges that it and the other members of its
Group may have in their possession confidential or proprietary information of
third Persons that was received under confidentiality or non-disclosure
agreements with such third Person prior to the Plan Effective Date.  GGP and Spinco each agrees that it will hold,
and will cause the other members of its Group and their respective
Representatives to hold, in strict confidence the confidential and proprietary
information of third Persons to which it or any other member of its respective
Group has access, in accordance with the terms of any agreements entered into
prior to the Plan Effective Date between or among one (1) or more members
of the applicable party’s Group and such third Persons.


 


6.3                                 Insurance Matters.


 


(a)                                  Except as expressly provided herein or in any of the other Transaction
Documents, Spinco acknowledges and agrees, on its own behalf and on behalf of
each other member of the Spinco Group, that, from and after the Effective Time,
neither Spinco nor any member of the Spinco Group shall have any rights to or
under any of GGP’s or its Subsidiaries’ insurance policies, other than any
insurance policies acquired prior to the Effective Time directly by and in the
name of a member of the Spinco Group or as expressly provided in this Section 6.3
or in the Transition Services Agreement or the Employee Matters Agreement; provided,
however, that Spinco shall be entitled to any loss recoveries paid to
any member of the GGP Group subsequent to the Effective Time in respect of any
insurance claims to the extent related to the Spinco Business that were
formally filed and open prior to the Effective Time less the amount of (i) any
Liabilities (other than Excluded Liabilities) that GGP or its Subsidiaries
(including, for the avoidance of doubt, any member of the Spinco Group)
incurred and paid in connection therewith prior to the Effective Time and (ii) any
Liabilities incurred by any member of the GGP Group in connection with
obtaining such insurance recoveries.


 


(b)                                 Notwithstanding Section 6.3(a), from and after the Effective
Time, with respect to losses, damages, wrongful acts or liability incurred
prior to the Effective Time, Spinco may access GGP’s insurance policies as
follows:


 


(i)                                     to file claims against GGP’s occurrence policies including Workers’
Compensation, Employers Liability, General Liability, Automobile Liability and
Excess Umbrella Policies for losses occurring on or before the Effective Time;
and


 


(ii)                                  to file claims against GGP’s claims made policies including Directors &
Officers, Fiduciary Liability, Employment Practices Liability, Crime, and
Pollution 


 


46

















 


Legal Liability
coverage in force at the time the claim is made if the act giving rise to the
claim occurred prior to the Effective Time;


 


provided, however, that, in the case of each of clause (i) and (ii),
such access to, and the right to make claims under such insurance policies, shall
be subject to the terms and conditions of the applicable insurance policies,
including any limits on coverage or scope, any deductible and other fees and
expenses, and shall be subject to:


 


(A)                              For so long as Spinco may access GGP’s policies, Spinco shall report as
promptly as practicable (1) claims under the Workers’ Compensation and
Automobile Liability policy directly to the applicable insurance company in
accordance with GGP’s claim reporting procedures in effect immediately prior to
the Effective Time and provide copies of such reported claims to GGP’s
Corporate Insurance and Risk Management Department and (2) claims under
all other insurance policies to the GGP Corporate Insurance Department;


 


(B)                                Spinco shall indemnify, hold harmless and reimburse GGP and its
Subsidiaries for any deductibles and self-insured retention incurred by GGP or
its Subsidiaries to the extent resulting from any access to, any claims made by
Spinco or any of its Subsidiaries under, any insurance provided pursuant to Section 6.3(b)(i) and
Section 6.3(b)(ii), including any indemnity payments, settlements,
judgments, legal fees and allocated claims expenses and claim handling fees,
whether such claims are made by Spinco, its employees or third Persons;


 


(C)                                Spinco shall exclusively bear and be responsible for (and GGP shall have
no obligation to repay or reimburse Spinco or any of its Subsidiaries for) and
pay the applicable insurers as required under the applicable insurance policies
for any and all costs as a result of having access to, or making claims under,
any insurance provided pursuant to Pre-GGP Insurance Policies, including any
deductibles and self-insured retention associated with such claims,
retrospective, retroactive or prospective premium adjustments associated with
the applicable insurance policies, catastrophic coverage charges, overhead,
claim handling and administrative costs, Taxes, surcharges, state assessments,
reinsurance costs, other related costs and claim payments, relating to all
open, closed or re-opened claims covered by the applicable policies, whether
such claims are made by Spinco, its employees or third Persons; and


 


(D)                               Spinco shall exclusively bear (and GGP shall have no obligation to repay
or reimburse Spinco or its Subsidiaries for) and shall be liable for all
uninsured, uncovered, unavailable or uncollectible amounts of all such claims
made by Spinco or any of its Subsidiaries under the policies as provided for in
this Section 6.3(b).


 


(c)                                  Any payments, costs and adjustments required pursuant to Section 6.3(b) (other
than payments, costs and adjustments with respect to Pre-GGP Insurance
Policies, which payments, costs and adjustments shall be paid by Spinco
directly to the applicable insurers) shall be billed by GGP to Spinco on a
monthly basis and payable within thirty (30) days from receipt of invoice.  If payment is not made within ninety (90)
days of invoice, the outstanding amount will accrue interest from and including
the ninetieth (90th) day following the date of the invoice to (but excluding)
the date of payment at a rate per annum equal to ten percent (10%).  If GGP 


 


47

















 


incurs costs to enforce
Spinco’s obligations herein, Spinco agrees to indemnify GGP for such
enforcement costs, including attorneys’ fees.


 


(d)                                 Except as set forth in the proviso to Section 6.3(a) and
the Employee Matters Agreement, Spinco acknowledges and agrees on its own
behalf, and on behalf of each other member of the Spinco Group, that neither
Spinco nor any member of the Spinco Group shall have any right or claim against
GGP or any of its Subsidiaries for reimbursement, payment or any other
obligation arising from any insurance policy covering Spinco, any Spinco Asset
or any member of the Spinco Group, and hereby irrevocably releases, as of the
Effective Time, GGP and its Subsidiaries from all of the duties, obligations,
responsibilities and liabilities, known or unknown, reported or not reported,
imposed upon GGP or any of its Subsidiaries to the extent resulting from, relating
to or arising out of any such insurance policy, without recourse to GGP or any
of its Subsidiaries.


 


(e)                                  GGP shall retain the exclusive right to control its insurance policies
and programs, including the right to exhaust, settle, release, commute,
buy-back or otherwise resolve disputes with respect to any of its insurance
policies and programs and to amend, modify or waive any rights under any such
insurance policies and programs, notwithstanding whether any such policies or
programs apply to any Spinco Liabilities and/or claims Spinco has made or could
make in the future, and no member of the Spinco Group shall, without the prior
written consent of GGP, erode, exhaust, settle, release, commute, buy-back or
otherwise resolve disputes with GGP’s insurers with respect to any of GGP’s
insurance policies and programs, or amend, modify or waive any rights under any
such insurance policies and programs. 
Spinco shall cooperate with GGP and share such information as is
reasonably necessary in order to permit GGP to manage and conduct its insurance
matters as it deems appropriate.


 


(f)                                    At the Effective Time, Spinco shall have in effect, except as
contemplated by the Transition Services Agreement, all insurance programs
required to comply with law or Spinco’s contractual obligations and such other
insurance policies as reasonably necessary or customary for companies operating
a business similar to Spinco’s.


 


(g)                                 Except as otherwise provided in Section 6.3(i), GGP and its
Subsidiaries shall have no obligation to secure extended reporting for any
claims under any of GGP’s or its Subsidiaries’ claims-made or
occurrence-reported liability policies for any acts or omissions by any member
of the Spinco Group incurred prior to the Effective Time.


 


(h)                                 GGP has obtained and shall provide for the joint benefit of GGP and
Spinco, a fully paid directors and officers liability run-off insurance policy,
for claims made after the Effective Time covering wrongful acts which take
place after the commencement of the Bankruptcy Cases and on or prior to the
Effective Time and arising out of or relating to the entities and business that
are part of the Spinco Group as of immediately after the Effective Time, with a
policy period of at least three (3) years from and after the Effective
Time, covering (i) current as of the Effective Time and former directors
and officers of GGP, (ii) current as of the Effective Time and former
directors and officers of the entities and business that are part of the Spinco
Group as of immediately after the Effective Time, (iii) current as of the
Effective Time and former GGP employees for securities claims and (iv) GGP
and its Subsidiaries and the entities and business that are part of the Spinco
Group as of immediately after the Effective Time 


 


48

















 


and its Subsidiaries
for securities claims.  Such directors
and officers liability run-off insurance policy shall be materially consistent
with the directors and officers liability insurance policy currently maintained
by GGP (except for the policy period and provisions excluding coverage for
wrongful acts occurring after the Effective Time).


 


(i)                                     This Agreement shall not be considered as an attempted assignment of any
policy of insurance or as a contract of insurance and shall not be construed to
waive any right or remedy of any member of the GGP Group in respect of any of
the GGP insurance policies and programs or any other Contract or policy of
insurance.


 


6.4                                 Allocation of Costs and Expenses.  Subject to the terms of the Investment
Agreements, GGP shall pay for all out-of-pocket fees, costs and expenses
incurred by GGP or any of its Subsidiaries prior to the Effective Time in
connection with the Transactions, including (i) the preparation and
negotiation of this Agreement, each other Transaction Document (unless
otherwise expressly provided therein), each of the financing transactions
described in the Form 10 as occurring on or prior to the Plan Effective
Date, including any financing transactions to be entered into by Spinco or any
of its Subsidiaries and all other documentation related to the Transactions and
all related transactions, (ii) the preparation and execution or filing of
any and all other documents, agreements, forms, applications, Contracts or
consents associated with the Transactions and all related transactions, (iii) the
preparation and filing of Spinco’s and its Subsidiaries’ organizational
documents, (iv) the preparation, printing and filing of the Form 10
and the information statement contained therein and/or any other required
securities filings, including all fees and expenses of complying with
applicable federal and state securities Laws and domestic securities exchange
rules and regulations, together with fees and expenses of counsel retained
to effect such compliance, (v) obtaining the Private Letter Ruling, (vi) the
initial listing of the Spinco Common Stock on the New York Stock Exchange,
(vii) the fees and expenses of Deloitte & Touche incurred in
connection with the Form 10 and the information statement contained
therein and/or any other required securities filings, (viii) the fees and
expenses related to the bankruptcy proceeding of GGP  and
(ix) the fees and expenses of Weil, Gotshal & Manges LLP incurred
in connection with rendering the legal opinions of outside tax counsel
contemplated by Section 3.2(c).


 


6.5                                 Litigation; Cooperation.


 


(a)                                  As of the Effective Time, Spinco shall assume and thereafter, except as
provided in Article V, be responsible for the administration of all
Liabilities that may result from the Assumed Actions and all fees and costs
relating to the defense of the Assumed Actions, including attorneys’ fees and
costs incurred after the Effective Time. 
“Assumed Actions” means those Actions (in which any member of the
GGP Group or any Subsidiary of a member of the GGP Group is a defendant or the
party against whom the claim or investigation is directed) primarily relating
to the Spinco Business, including the Actions listed on Schedule 6.5(a).  Spinco shall use its commercially reasonable
efforts to cause each member of the GGP Group to be removed from the Assumed
Actions; provided, however, that if Spinco is unable to cause
each member of the GGP Group to be removed from an Assumed Action, GGP and
Spinco shall cooperate and consult to the extent necessary or advisable with
respect to such Assumed Action.


 


49

















 


(b)                                 The GGP Group shall transfer the Transferred Actions to Spinco, and
Spinco shall receive and have the benefit of all of the proceeds of such
Transferred Actions. “Transferred Actions” means those Actions (in which
any member of the GGP Group or any Subsidiary of a member of the GGP Group is a
plaintiff or claimant) primarily relating to the Spinco Business.  Spinco shall use its commercially reasonable
efforts to cause each member of the GGP Group to be removed from the
Transferred Actions; provided, however, that if Spinco is unable
to cause each member of the GGP Group to be removed from a Transferred Action,
GGP and Spinco shall cooperate and consult to the extent necessary or advisable
with respect to such Transferred Action.


 


(c)                                  (i)                                     GGP agrees that at all times from and after the Effective Time if a Third
Party Claim relating primarily to the GGP Business is commenced naming both a
member of the GGP Group and a member of the Spinco Group as defendants thereto,
then GGP shall use its commercially reasonable efforts to cause each such
member of the Spinco Group to be removed from such Third Party Claim; provided,
that, if GGP is unable to cause each such member of the Spinco Group to be
removed from such Third Party Claim, GGP and Spinco shall cooperate and consult
to the extent necessary or advisable with respect to such Third Party Claim.


 


(ii)                                  Spinco agrees that at all times from and after the Effective Time if a
Third Party Claim relating primarily to the Spinco Business is commenced naming
both a member of the GGP Group and a member of the Spinco Group as defendants
thereto, then Spinco shall use its commercially reasonable efforts to cause
each member of the GGP Group to be removed from such Third Party Claim; provided,
that, if Spinco is unable to cause each member of the GGP Group to be removed
from such Third Party Claim, GGP and Spinco shall cooperate and consult to the
extent necessary or advisable with respect to such Third Party Claim.


 


(iii)                               GGP and Spinco agree that at all times from and after the Effective Time
if a Third Party Claim which does not relate primarily to the Spinco Business
or the GGP Business is commenced naming both GGP (or any member of the GGP
Group) and Spinco (or any member of the Spinco Group) as defendants thereto,
then GGP and Spinco shall cooperate fully with each other, maintain a joint
defense (in a manner that would preserve for both parties and their respective
Subsidiaries any attorney-client privilege, joint defense or other privilege
with respect thereto) and consult each other to the extent necessary or
advisable with respect to such Third Party Claim.


 


(d)                                 GGP and Spinco agree that, with respect to any Assumed Action,
Transferred Action, Third Party Claim, or any other Action to which either a
member of the GGP Group or a member of the Spinco Group is a party and that is
governed by this Section 6.5, neither GGP or any member of the GGP
Group, on the one hand, nor Spinco or any member of the Spinco Group, on the
other hand, shall settle such Action in a manner that would reasonably be
expected to result in any liability or equitable relief, contingent or
otherwise, against the other.


 


6.6                                 Tax Matters.  GGP and Spinco shall enter into the Tax
Matters Agreement on or prior to the Plan Effective Date.  To the extent any representations,
warranties, covenants or agreements between the parties with respect to Taxes
or other matters are set forth in the Tax 


 


50

















 


Matters Agreement, such
Taxes and other matters shall be governed exclusively by the Tax Matters
Agreement and not by this Agreement.


 


6.7                                 Employment Matters.  GGP and Spinco shall enter into the Employee
Matters Agreement concurrent with this Agreement.  To the extent that any representations,
warranties, covenants or agreements between the parties with respect to
employment matters are set forth in the Employee Matters Agreement, such
employment matters shall be governed exclusively by the Employee Matters
Agreement and not by this Agreement, if applicable, with respect to Spinco
Employees.


 


6.8                                 Real Estate Agreements.  GGP and Spinco shall enter into the Real
Estate Agreements on or prior to the Plan Effective Date.  To the extent that any representations,
warranties, covenants or agreements between the parties with respect to the
subject matters contemplated by the Real Estate Agreements are set forth in the
Real Estate Agreements, such subject matters shall be governed exclusively by
the Real Estate Agreements and not by this Agreement.


 


ARTICLE VII


 


DISPUTE
RESOLUTION


 


7.1                                 General Provisions.


 


(a)                                  Any dispute, controversy or claim arising out of or relating to this
Agreement that arises prior to the closing of the Bankruptcy Cases (such time,
the “Bankruptcy Closing”) shall be subject to the jurisdiction of
and determination by the Bankruptcy Court, and any dispute, controversy or
claim arising out of or relating to this Agreement that arises after the
Bankruptcy Closing shall be subject to the procedures in this Article VII.  Each of the parties hereto (i) consents
to the exclusive personal jurisdiction of the Bankruptcy Court (prior to the
Bankruptcy Closing) or the procedures set forth in this Article VII
(after the Bankruptcy Closing) in connection with any dispute arising out of or
relating to this Agreement, (ii) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
such courts for actions brought prior to the Bankruptcy Closing and (iii) agrees
that it will not bring any action relating to this Agreement in any court other
than the Bankruptcy Court (prior to the Bankruptcy Closing), unless such court
first determines it does not have subject matter jurisdiction or otherwise
declines to hear the dispute.


 


(b)                                 Subject to Section 7.1(a), any dispute, controversy or claim
arising out of or relating to this Agreement or the other Transaction Documents
(other than the Transition Services Agreement and the Tax Matters Agreement,
which shall be subject to the dispute resolution provisions contained therein),
or the validity, interpretation, breach or termination thereof that arises
after the final determination of the Bankruptcy Cases (a “Dispute”),
shall be resolved in accordance with the procedures set forth in this Article VII,
which shall be the sole and exclusive procedures for the resolution of any such
Dispute unless otherwise specified in the applicable Transaction Document or in
this Article VII below.


 


51

















 


(c)                                  Commencing with a request contemplated by Section 7.2 set
forth below, all communications between the parties or their representatives in
connection with the attempted resolution of any Dispute shall be deemed to have
been delivered in furtherance of a Dispute settlement and shall be exempt from
discovery and production, and shall not be admissible into evidence for any
reason (whether as an admission or otherwise), in any arbitral or other
proceeding for the resolution of any Dispute.


 


(d)                                 THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO (I) SPECIAL
DAMAGES, AS DEFINED HEREIN (PROVIDED, THAT LIABILITY FOR ANY SUCH
SPECIAL DAMAGES, AS DEFINED HEREIN, WITH RESPECT TO ANY THIRD PARTY CLAIM SHALL
BE CONSIDERED DIRECT DAMAGES) AND (II) TRIAL BY JURY.


 


(e)                                  The specific procedures set forth in this Article VII below,
including the time limits referenced therein, may be modified by agreement of
both of the parties in writing.


 


(f)                                    All applicable statutes of limitations and defenses based upon the
passage of time shall be tolled while the procedures specified in this Article VII
are pending.  The parties will take any
necessary or appropriate action required to effectuate such tolling.


 


7.2                                 Consideration by Senior Executives.  Following the Bankruptcy Closing, if a
Dispute is not resolved in the normal course of business at the operational
level, the parties shall attempt in good faith to resolve the Dispute by
negotiation between the Groups’ executives who hold, respectively, the office
of Vice President (or a more senior office). 
Either party may initiate the executive negotiation process by providing
a written notice to the other (the “Initial Notice”).  Within fifteen (15) days, the receiving party
shall submit to the other a written response (the “Response”).  The Initial Notice and the Response shall
include (i) a statement of the Dispute and of each party’s position and
(ii) the name and title of the executive who will represent that party and
of any other person who will accompany the executive.  The parties agree that such executives shall
have full and complete authority to resolve any Disputes submitted pursuant to
this Section 7.2.  Such
executives will meet in person or by teleconference or video conference within
thirty (30) days (or, where the Dispute relates to the a matter controlled by
the Transition Services Agreement, then within the time periods set forth
therein with respect to the Transition Services Agreement, twenty-five (25)
days) of the date of the Initial Notice to seek a resolution of the
Dispute.  In the event that the
executives are unable to agree to a location or format for such meeting, the
meeting shall be convened by teleconference.


 


7.3                                 Arbitration.


 


(a)                                  Following the Bankruptcy Closing, if a Dispute is not resolved by
negotiation as provided in Section 7.2 within forty-five (45) days
(or, where the Dispute relates to the Transition Services Agreement, thirty
(30) days) from the delivery of the Initial Notice, then either party shall (i) pursuant
to its rights under Section 7.1, submit a request for interim
injunctive relief to the arbitrator appointed pursuant to Section 7.3(b) (provided,
that, if the tribunal shall not have been constituted, either party may seek
interim relief either before a special arbitrator, as provided for in Rule 14
of the CPR Institute for Dispute Resolution (the “CPR”) Arbitration
Rules, or before any court of competent jurisdiction) without first complying 


 


52

















 


with the provisions of Section 7.2
if, in the reasonable opinion of such party, such interim injunctive relief is
necessary to preserve its rights pending resolution of the Dispute, and
(ii) if such Dispute is not finally resolved pursuant to Section 7.2,
submit such Dispute to be finally resolved by binding arbitration, in each
case, pursuant to the CPR Rules for Non-Administered Arbitration as then
in effect (the “CPR Arbitration Rules”).


 


(b)                                 The neutral organization for purposes of the CPR Arbitration Rules will
be the CPR.  The arbitrator will be
composed of one (1) arbitrator.  The
one (1) arbitrator will be appointed by CPR from a list of six (6) proposed
neutrals submitted by the CPR.  Each
party may strike no more than two (2) neutrals from the list submitted by
CPR.


 


(c)                                  Arbitration will take place in the Borough of Manhattan in New York, New
York.  Along with the arbitrator
appointed, the parties will agree to a mutually convenient date and time to
conduct the arbitration, but in no event will the hearing(s) be scheduled
less than nine (9) months from submission of the Dispute to arbitration
unless the parties agree otherwise in writing; provided, that, if
injunctive or other interim relief contemplated by Section 7.3(d) below
is requested, the hearing(s) will be expedited in accordance with any
order entered by the court, tribunal or special arbitrator adjudicating that
request.


 


(d)                                 The arbitrator will have the right to award, on an interim basis, or include
in the final award, money damages (with interest on unpaid amounts from the due
date), injunctive relief (including specific performance) and attorneys’ fees
and costs; provided, that the arbitrator will not award any relief not
specifically requested by the parties and, in any event, will not award Special
Damages.  Upon appointment of the
arbitrator following any grant of interim relief by a special arbitrator or
court pursuant to Sections 7.3(a) and 7.4, the tribunal may
affirm or disaffirm that relief, and the parties will seek modification or
rescission of the order entered by the special arbitrator or court as necessary
to accord with the tribunal’s decision.


 


(e)                                  The parties agree to be bound by the provisions of Rule 13 of the
Federal Rules of Civil Procedure with respect to compulsory counterclaims
(as the same may be amended from time to time); provided, that any such
compulsory counterclaim shall be filed within thirty (30) days of the filing of
the original claim.


 


(f)                                    So long as either party has a timely claim to assert, the agreement to
arbitrate Disputes set forth in this Section 7.3 will continue in
full force and effect subsequent to, and notwithstanding the completion,
expiration or termination of, this Agreement.


 


(g)                                 A party obtaining an order of interim injunctive relief may enter
judgment upon such award in any court of competent jurisdiction.  The final award in an arbitration pursuant to
this Article VII shall be conclusive and binding upon the parties,
and a party obtaining a final award may enter judgment upon such award in any
court of competent jurisdiction.


 


(h)                                 It is the intent of the parties that the agreement to arbitrate Disputes
set forth in this Section 7.3 shall be interpreted and applied
broadly such that all reasonable doubts as to arbitrability of a Dispute shall
be decided in favor of arbitration.


 


53

















 


(i)                                     If a Dispute includes both arbitrable and nonarbitrable claims,
counterclaims or defenses, the parties shall arbitrate all such arbitrable
claims, counterclaims or defenses and shall concurrently litigate all such
nonarbitrable claims, counterclaims or defenses.


 


(j)                                     The parties agree that any Dispute submitted to mediation and/or
arbitration shall be governed by, and construed and interpreted in accordance
with, Section 8.2 and, except as otherwise provided in this Article VII
or mutually agreed to in writing by the parties, the Federal Arbitration Act, 9
U.S.C. §§ 1 et seq., shall govern any arbitration between the parties pursuant
to this Section 7.3.


 


(k)                                  Each party shall bear (i) its own fees, costs
and expenses and (ii) an equal share of other expenses of the arbitration,
including the fees, costs and expenses of the one (1) arbitrator; provided,
in the case of any Disputes relating to the parties’ rights and obligations
with respect to indemnification under Article V, the prevailing
party shall be entitled to reimbursement by the other party of its reasonable
out-of-pocket fees and expenses (including attorneys’ fees) incurred in
connection with the arbitration.


 


7.4                                 Specific Performance.  In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the Tax Matters Agreement, the Employee Matters Agreement or any of
the Real Estate Agreements, the party or parties who are or are to be thereby
aggrieved shall have the right to specific performance and injunctive or other
equitable relief (on an interim or permanent basis) of its rights under such agreement,
in addition to any and all other rights and remedies at law or in equity, and
all such rights and remedies shall be cumulative.  The parties agree that the remedies at law
for any breach or threatened breach, including monetary damages, may be inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived.  Any requirements for the securing or posting
of any bond with such remedy are waived by each of the parties to this
Agreement.  Notwithstanding the
foregoing, except with respect to breaches of Section 6.2 of this
Agreement, specific performance can only be sought and granted in proceedings
before the Bankruptcy Court or the independent arbitrator pursuant to this Article VII.


 


ARTICLE VIII


 


MISCELLANEOUS


 


8.1                                 Corporate Power.  GGP represents on behalf of itself and on
behalf of other members of the GGP Group, and Spinco represents on behalf of
itself and on behalf of other members of the Spinco Group, as of the date hereof,
as follows:


 


(a)                                  each such Person has the requisite corporate power and authority and has
taken all corporate action necessary in order to execute, deliver and perform
each of this Agreement and each other Transaction Document to which it is a
party and to consummate the transactions contemplated hereby and thereby; and


 


54














 


(b)                                 this Agreement and each Transaction Document to which it is a party has
been duly executed and delivered by it and constitutes a valid and binding
agreement of it enforceable in accordance with the terms thereof.


 


8.2                                 Governing Law.  This Agreement and, unless expressly provided
therein, each other Transaction Document, shall be governed by and construed
and interpreted in accordance with the Laws of the State of New York
irrespective of the choice of Laws principles of the State of New York.


 


8.3                                 Survival of Covenants.  Except as expressly set forth in any other
Transaction Document, the covenants and other agreements contained in this
Agreement and each other Transaction Document, and liability for the breach of
any obligations contained herein or therein, shall survive each of the
Restructuring and the Distribution and shall remain in full force and effect.


 


8.4                                 Force Majeure.  No party hereto (or any Person acting on its
behalf) shall have any liability or responsibility for failure to fulfill any
obligation (other than a payment obligation) under this Agreement or, unless
otherwise expressly provided therein, any other Transaction Document, so long
as and to the extent to which the fulfillment of such obligation is prevented,
frustrated, hindered or delayed as a consequence of circumstances of Force
Majeure.  A party claiming the benefit of
this provision shall, as soon as reasonably practicable after the occurrence of
any such event, (i) notify the other parties of the nature and extent of
any such Force Majeure condition and (ii) use due diligence to remove any
such causes and resume performance under this Agreement as soon as feasible.


 


8.5                                 Notices.  All notices, requests, claims, demands and
other communications under this Agreement and, to the extent applicable and
unless otherwise provided therein, under each of the other Transaction
Documents shall be in writing and shall be given or made (and shall be deemed
to have been duly given or made upon receipt) by delivery in person, by
overnight courier service, by facsimile or electronic transmission with receipt
confirmed (followed by delivery of an original via overnight courier service)
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this Section 8.5):


 


	
   

  	
  (i)

  	
  if to GGP:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General
  Growth Properties, Inc.

  
	
   

  	
   

  	
  110
  N. Wacker Drive

  
	
   

  	
   

  	
  Chicago, IL
  60606

  
	
   

  	
   

  	
  Attention:

  	
  General
  Counsel

  
	
   

  	
   

  	
  Facsimile:

  	
  (312)
  960-5485

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  if to Spinco:

  



 


55

















 


	
   

  	
   

  	
  The
  Howard Hughes Corporation

  
	
   

  	
   

  	
  13355
  Noel Road

  
	
   

  	
   

  	
  Suite 950

  
	
   

  	
   

  	
  Dallas,
  TX 75240

  
	
   

  	
   

  	
  Attention:

  	
  Grant
  Herlitz

  
	
   

  	
   

  	
  Facsimile:

  	
  (214)
  741-3021

  
	
   

  	
   

  	
   

  
	
  a copy of all notices should also be sent to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Weil,
  Gotshal & Manges LLP

  
	
   

  	
   

  	
  767
  Fifth Avenue

  
	
   

  	
   

  	
  New
  York, NY 10153

  
	
   

  	
   

  	
  Attention:

  	
  Gary
  Holtzer and Marcia Goldstein

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)
  310-8007

  



 


8.6                                 Termination.  Notwithstanding any provision to the
contrary, this Agreement may be terminated and the Distribution abandoned at
any time prior to the Effective Time by and in the sole discretion of GGP
without the prior approval of any Person, including Spinco.  In the event of such termination, this
Agreement shall become void and no party, or any of its officers and directors,
shall have any liability to any Person by reason of this Agreement.  After the Effective Time, this Agreement may
not be terminated except by an agreement in writing signed by each of the
parties to this Agreement.


 


8.7                                 Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced under any Law or
as a matter of public policy, all other conditions and provisions of this Agreement
shall remain in full force and effect. 
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties to this Agreement shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement be consummated as
originally contemplated to the greatest extent possible.


 


8.8                                 Entire Agreement.  Except as otherwise expressly provided in
this Agreement, this Agreement (including the Schedules and Exhibits hereto)
constitutes the entire agreement of the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior agreements and
undertakings, both written and oral, between or on behalf of the parties hereto
with respect to the subject matter of this Agreement.


 


8.9                                 Assignment; No Third-Party Beneficiaries.  This Agreement shall not be assigned by
either party without the prior written consent of the other party.  Notwithstanding the foregoing, either party
may assign (i) any or all of its rights and obligations under this
Agreement to any of its Subsidiaries and (ii) any or all of its rights and
obligations under this Agreement in connection with a sale or disposition of
any assets or entities or lines of business; provided, however,
that, in each case, no such assignment shall (i) release the assigning
party from any liability or obligation under this Agreement or (ii) change
any of the steps in the Spinoff Plan or the Plan.  Except as provided in Article V
with respect to Indemnified Parties, this Agreement is for the sole benefit of
the parties to this Agreement and members of their 


 


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respective Group and
their permitted successors and assigns and nothing in this Agreement, express
or implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.


 


8.10                           Public Announcements.  From and after the Effective Time, GGP and
Spinco shall consult with each other before issuing, and give each other the
opportunity to review and comment upon, any press release or other public
statements with respect to any matters covered by this Agreement, and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable Law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange or national securities quotation system.


 


8.11                           Amendment.  No provision of this Agreement may be amended
or modified except by a written instrument signed by all the parties to this
Agreement.  No waiver by any party of any
provision of this Agreement shall be effective unless explicitly set forth in
writing and executed by the party so waiving. 
The waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other subsequent breach.


 


8.12                           Rules of Construction.  Interpretation of this Agreement shall be
governed by the following rules of construction:  (i) in the event of any conflict between
the terms and conditions of this Agreement and the terms and conditions of any
Ancillary Document, the terms and conditions of the Ancillary Document shall
govern and control this Agreement, unless otherwise specified herein;
(ii) words in the singular shall be held to include the plural and vice versa
and words of one gender shall be held to include the other gender as the
context requires; (iii) references to the terms Article, Section,
paragraph, clause, Exhibit and Schedule are references to the Articles,
Sections, paragraphs, clauses, Exhibits and Schedules of this Agreement unless
otherwise specified; (iv) the terms “hereof,” “herein,” “hereby,”
“hereto,” and derivative or similar words refer to this entire Agreement,
including the Schedules and Exhibits hereto; (v) references to “$” shall
mean U.S. dollars; (vi) the word “including” and words of similar import
when used in this Agreement shall mean “including, without limitation,” unless
otherwise specified; (vii) the word “or” shall not be exclusive;
(viii) references to “written” or “in writing” include in electronic form;
(ix) unless the context requires otherwise, references to “party” shall
mean GGP or Spinco, as appropriate, and references to “parties” shall mean GGP
and Spinco; (x) provisions shall apply, when appropriate, to successive events
and transactions; (xi) the table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement; (xii) GGP and Spinco have
each participated in the negotiation and drafting of this Agreement and if an
ambiguity or question of interpretation should arise, this Agreement shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or burdening either party by virtue of the
authorship of any of the provisions in this Agreement or any interim drafts of
this Agreement; and (xiii) a reference to any Person includes such
Person’s successors and permitted assigns.


 


8.13                           Counterparts.  This Agreement may be executed in one
(1) or more counterparts, and by the different parties to each such
agreement in separate counterparts, each of which when executed shall be deemed
to be an original but all of which taken together shall constitute one and the
same agreement.  Delivery of an executed
counterpart of a signature page to this 


 


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Agreement by facsimile
or portable document format (PDF) shall be as effective as delivery of a
manually executed counterpart of any such Agreement.


 


[The remainder of this page is intentionally
left blank.]


 


58

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date first written above by their respective duly authorized officers.


 


	
   

  	
  GENERAL GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  HOWARD HUGHES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to
Separation Agreement


 

















 


EXHIBIT A-1


 


Form of Ala Moana Condominium Declaration


 


See attached.


 

















 


EXHIBIT A-2


 


Form of Ala Moana Development Agreement


 


See attached.


 

















 


EXHIBIT B


 


Form of Arizona 2 Promissory Note


 


See attached.


 

















 


EXHIBIT C


 


Form of Assumption Agreement


 


See attached.


 

















 


EXHIBIT D


 


Form of Columbia Development Agreement


 


See attached.


 














 


EXHIBIT E


 


Form of Employee Leasing Agreement


 


See attached.


 

















 


EXHIBIT F


 


Form of Employee Matters Agreement


 


See attached.


 

















 


EXHIBIT G


 


Form of Fashion Show Core Principles


 


See attached.


 

















 


EXHIBIT H


 


Form of Registration Rights Agreement


 


See attached.


 

















 


EXHIBIT I-1


 


Form of REP Investments Stockholders Agreement


 


See attached.


 

















 


EXHIBIT I-2


 


Form of Fairholme Stockholders Agreement


 


See attached.


 

















 


EXHIBIT I-3


 


Form of Pershing Square Stockholders Agreement


 


See attached.


 

















 


EXHIBIT J-1


 


Form of 110 N. Wacker (Chicago Headquarters) Sublease Term Sheet


 


See attached.


 

















 


EXHIBIT J-2


 


Form of 10,000 W. Charleston (Las Vegas Headquarters) Sublease
Term Sheet


 


See attached.


 

















 


EXHIBIT J-3


 


Form of Columbia Headquarters Sublease Term Sheet


 


See attached.


 














 


EXHIBIT K


 


Form of Surety Bond Indemnity Agreement


 


See attached.


 

















 


EXHIBIT L


 


Form of Tax Matters Agreement


 


See attached.


 

















 


EXHIBIT M-1


 


Form of Transition Services Agreement


 


See attached.


 

















 


EXHIBIT M-2


 


Form of Reverse Transition Services Agreement


 


See attached.


 

















 


EXHIBIT N


 


Form of Warrant and Registration Rights Agreement


 


See attached.


 

















 


SCHEDULE 2.1(a)


 


Spinoff Plan


 


See attached.


 

















 


SCHEDULE 6.5(a)


 


Assumed Actions


 


See attached.