Exhibit 10.1


 




 





TRANSITION SERVICES AGREEMENT


 


dated as of November 9,
2010


 


among


 


GGP LIMITED PARTNERSHIP,


 


GENERAL GROWTH MANAGEMENT, INC.,


 


and


 


THE HOWARD HUGHES
CORPORATION




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Certain
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SERVICES,
  DURATION AND SERVICE MANAGERS

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Services

  	
  3

  
	
  Section 2.02.

  	
  Duration
  of Services

  	
  3

  
	
  Section 2.03.

  	
  Additional
  Unspecified Services

  	
  4

  
	
  Section 2.04.

  	
  Transition
  Service Managers

  	
  5

  
	
  Section 2.05.

  	
  Personnel

  	
  6

  
	
  Section 2.06.

  	
  No
  Duplication

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  GGP
  MATERIALS

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Corporate
  Policies

  	
  6

  
	
  Section 3.02.

  	
  Limitation
  on Rights and Obligations with Respect to the GGP Materials

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  OTHER
  ARRANGEMENTS AND ADDITIONAL AGREEMENTS

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Software
  and Software Licenses

  	
  8

  
	
  Section 4.02.

  	
  GGP
  Computer-Based and Other Resources

  	
  8

  
	
  Section 4.03.

  	
  Spinco
  Computer-Based and Other Resources

  	
  9

  
	
  Section 4.04.

  	
  Access

  	
  9

  
	
  Section 4.05.

  	
  Insider
  Trading Policy

  	
  9

  
	
  Section 4.06.

  	
  Cooperation

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  COSTS
  AND DISBURSEMENTS

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Costs
  and Disbursements

  	
  10

  
	
  Section 5.02.

  	
  Taxes

  	
  11

  
	
  Section 5.03.

  	
  No
  Right to Set-Off

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  STANDARD
  FOR SERVICE

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Standard
  for Service

  	
  11

  
	
  Section 6.02.

  	
  Disclaimer
  of Warranties

  	
  12

  
	
  Section 6.03.

  	
  Compliance
  with Laws and Regulations

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  LIMITED
  LIABILITY AND INDEMNIFICATION

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Consequential
  and Other Damages

  	
  12

  
	
  Section 7.02.

  	
  Limitation
  of Liability

  	
  12

  
	
  Section 7.03.

  	
  Obligation
  to Reperform and GGP Indemnity

  	
  13

  
				



 


i

















 


	
  Section 7.04.

  	
  Release
  and Spinco Indemnity

  	
  13

  
	
  Section 7.05.

  	
  Indemnification
  Procedures

  	
  13

  
	
  Section 7.06.

  	
  Liability
  for Payment Obligations

  	
  13

  
	
  Section 7.07.

  	
  Exclusion
  of Other Remedies

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  DISPUTE
  RESOLUTION

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Dispute
  Resolution.

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  TERM
  AND TERMINATION

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Term
  and Termination

  	
  14

  
	
  Section 9.02.

  	
  Effect
  of Termination

  	
  15

  
	
  Section 9.03.

  	
  Force
  Majeure

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  GENERAL
  PROVISIONS

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  No
  Agency

  	
  16

  
	
  Section 10.02.

  	
  Subcontractors

  	
  16

  
	
  Section 10.03.

  	
  Treatment
  of Confidential Information

  	
  17

  
	
  Section 10.04.

  	
  Further
  Assurances

  	
  18

  
	
  Section 10.05.

  	
  Notices

  	
  18

  
	
  Section 10.06.

  	
  Severability

  	
  19

  
	
  Section 10.07.

  	
  Entire
  Agreement

  	
  19

  
	
  Section 10.08.

  	
  No
  Third-Party Beneficiaries

  	
  19

  
	
  Section 10.09.

  	
  Governing
  Law

  	
  19

  
	
  Section 10.10.

  	
  Amendment

  	
  19

  
	
  Section 10.11.

  	
  Rules of
  Construction

  	
  20

  
	
  Section 10.12.

  	
  Counterparts

  	
  20

  
	
  Section 10.13.

  	
  Assignability

  	
  20

  
	
  Section 10.14.

  	
  Waiver
  of Jury Trial

  	
  21

  
	
  Section 10.15.

  	
  Specific
  Performance

  	
  21

  
	
  Section 10.16.

  	
  Non-Recourse

  	
  22

  
				



 


ii

















 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  I

  	
  Direct Payroll Costs

  
	
  II

  	
  Service Managers

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  A-1

  	
  Insurance

  
	
  A-2

  	
  Development

  
	
  A-3

  	
  Asset Management

  
	
  A-4

  	
  Leasing

  
	
  A-5

  	
  Marketing and Communications

  
	
  A-6

  	
  Legal

  
	
  A-7

  	
  Accounting

  
	
  A-8

  	
  Real and Personal Property Tax

  
	
  A-9

  	
  Income Tax

  
	
  A-10

  	
  Information Technology

  
	
  A-11

  	
  Public Accounting, Internal Audit and Sarbanes-Oxley

  
	
  A-12

  	
  Treasury

  



 


iii

















 


TRANSITION SERVICES AGREEMENT


 


This
Transition Services Agreement (this “Agreement”), dated as of November 9,
2010, is by and among GGP Limited Partnership, a Delaware limited partnership (“GGPLP”),
General Growth Management, Inc., a Delaware corporation (“GGMI”
and, collectively with GGPLP, “GGP”), and The Howard Hughes Corporation,
a Delaware corporation (“Spinco”).


 


RECITALS


 


WHEREAS,
General Growth Properties, Inc. (“GGPI”) and Spinco entered into
the Separation Agreement, dated as of the date hereof (as amended, modified or
supplemented from time to time in accordance with its terms, the “Separation
Agreement”); and


 


WHEREAS,
pursuant to the Separation Agreement, the Parties agreed that GGPI (and/or its
Subsidiaries on the date of this Agreement immediately after giving effect to,
and subject to the occurrence of, the Distribution, collectively referred to as
the “GGP Entities”) shall provide or cause to be provided to Spinco
(and/or its Subsidiaries on the date of this Agreement immediately after giving
effect to, and subject to the occurrence of, the Distribution, collectively
referred to as the “Spinco Entities”) certain services on a transitional
basis and in accordance with the terms and subject to the conditions set forth
in this Agreement; and


 


WHEREAS,
the Separation Agreement requires execution and delivery of this Agreement by
GGP and Spinco on or prior to the Plan Effective Date.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements
contained in this Agreement, the Parties hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.01.  Certain Defined Terms.  (a) Unless otherwise defined in this
Agreement, all capitalized terms used in this Agreement shall have the same
meaning as in the Separation Agreement.


 


(b)           The following capitalized terms used in this Agreement
shall have the meanings set forth below:


 


“Additional
Services” shall have the meaning set forth in Section 2.03(a).


 


“Agreement”
shall have the meaning set forth in the Preamble.


 


“Competitor
of GGP” shall mean an entity that is directly or indirectly (or whose
Affiliates are directly or indirectly) in the business of owning or managing
retail malls.


 


“Confidential
Information” shall have the meaning set forth in Section 10.03(a).


 

















 


“Cost
Multiplier” shall mean: 110% during the period beginning on the Plan
Effective Date and ending on the last day of the 6th month after the Plan
Effective Date; 150% during the period beginning on the first day of the 7th
month after the Plan Effective Date and ending on the last day of the 12th
month after the Plan Effective Date; and 200% during the period beginning on
the first day of the 13th month after the Plan Effective Date and ending on the
date that this Agreement terminates.


 


“Direct
Payroll Costs” shall mean, with respect to each GGP Employee providing a
particular Service, the applicable hourly rate set forth on Exhibit I.


 


“Dispute”
shall have the meaning set forth in Section 8.01(a).


 


“GGMI”
shall have the meaning set forth in the Preamble.


 


“GGP”
shall have the meaning set forth in the Preamble.


 


“GGP
Employee” shall mean an employee of any of the GGP Entities.


 


“GGP
Entities” shall have the meaning set forth in the Recitals.


 


“GGP
Indemnified Party” shall have the meaning set forth in Section 7.04.


 


“GGP
Intranet” shall mean GGPI’s internal computer network Intranet site
generally accessible only by GGP Employees.


 


“GGPI”
shall have the meaning set forth in the Recitals.


 


“GGPLP”
shall have the meaning set forth in the Preamble.


 


“GGP
Materials” shall have the meaning set forth in Section 3.01(a).


 


“GGP
Overall Service Manager” shall have the meaning set forth in Section 2.04(a).


 


“GGP
Service Manager” shall have the meaning set forth in Section 2.04(a).


 


“Interest
Rate” shall have the meaning set forth in Section 5.01(b).


 


“Out-of-Pocket
Expenses” shall mean, with respect to a particular Service, any
out-of-pocket costs, fees and expenses that GGP or any other member of the GGP
Group actually pays to an unaffiliated third party in the course of providing
such Service, without any additional charge or mark up.  The term “Out-of-Pocket Expenses” shall not
include any rent, utilities, taxes, clerical support, GGP Employee compensation
and benefits or any other general or administrative overhead or other similar
costs or expenses.


 


“Overall
Service Managers” shall mean the GGP Overall Service Manager and the Spinco
Overall Service Manager.


 


2

















 


“Party”
shall mean GGP and Spinco individually, and “Parties” means GGP and
Spinco collectively, and, in each case, their permitted successors and assigns.


 


“Representative”
shall mean, with respect to any Person, any director, officer, employee, agent,
consultant, accountant, auditor, attorney or other representative of such
Person.


 


“Schedule(s)”
shall have the meaning set forth in Section 2.02.


 


“Separation
Agreement” shall have the meaning set forth in the Recitals.


 


“Service
Charges” shall have the meaning set forth in Section 5.01(a).


 


“Service
Increases” shall have the meaning set forth in Section 2.03(b).


 


“Service
Resource Cost” shall mean, with respect to a particular Service, (A) an
amount equal to the product of (x) the Direct Payroll Cost of the
GGP Employee providing the Service multiplied by (y) the number of
hours such employee spent performing the Service, or (B) if a different
pricing methodology is expressly provided for in the applicable Schedule with
respect to such Service, an amount calculated based on such pricing
methodology.


 


“Services”
shall have the meaning set forth in Section 2.01.


 


“Spinco”
shall have the meaning set forth in the Preamble.


 


“Spinco
Entities” shall have the meaning set forth in the Recitals.


 


“Spinco
Indemnified Party” shall have the meaning set forth in Section 7.03.


 


“Spinco
Intranet” shall have the meaning set forth in Section 4.02(a).


 


“Spinco
Overall Service Manager” shall have the meaning set forth in Section 2.04(b).


 


“Spinco
Service Manager” shall have the meaning set forth in Section 2.04(b).


 


ARTICLE II


 


SERVICES, DURATION AND
SERVICE MANAGERS


 


Section 2.01.  Services.  Subject to the terms and conditions of this
Agreement, GGP shall provide (or cause to be provided) to the Spinco Entities,
as requested from time to time by Spinco, the services listed on Schedule A
(which may be grouped by type of Services in sub-schedules) to this Agreement
(the “Services”).  All of the
Services shall be for the sole use and benefit of the Spinco Entities as
constituted on the Plan Effective Date.


 


Section 2.02.  Duration of Services.  Subject to the terms of this Agreement,
commencing on the Plan Effective Date, GGP shall provide or cause to be
provided to the Spinco Entities each Service until the earlier to occur of,
with respect to each such Service, (i) the expiration of the period of the
maximum duration for such Service as set forth on the sub-


 


3

















 


schedules attached hereto defining such Service
(each a “Schedule”, and collectively, the “Schedules”) and (ii) the
date on which such Service is terminated under Section 9.01; provided,
however, that Spinco shall use commercially reasonable efforts in good
faith to transition itself to a stand-alone entity with respect to each Service
during the period for such Service as set forth in the relevant Schedules.  In the event that GGP sells, transfers or
otherwise disposes of its interest in any of its Subsidiaries that is engaged
in providing one or more Services, GGP shall (x) if requested by Spinco,
use commercially reasonable efforts to cause such Subsidiary or the acquiror
thereof to agree that such Subsidiary will continue to provide such Services to
the same extent provided pursuant to the terms of this Agreement or (y) if
requested by Spinco, or to the extent the Subsidiary or the acquiror will not
agree to provide such Services after GGP’s exertion of commercially reasonable
efforts pursuant to (x), secure such Services from a reputable and experienced
third-party vendor at substantially equivalent service levels for the remaining
term of such Services.


 


Section 2.03.  Additional Unspecified Services.  (a) After the Plan Effective Date, if
Spinco (i) identifies a service that the GGP Entities provided to the
Spinco Business prior to the Plan Effective Date that is reasonably necessary
in order for the Spinco Business to continue to operate in substantially the
same manner in which the Spinco Business operated prior to the Plan Effective
Date and is otherwise material to operations of the Spinco Business, and such
service was not included on the Schedules, and (ii) provides written
notice to GGP within one hundred twenty (120) days following the Plan Effective
Date requesting such additional service, then GGP shall, subject to the
negotiation of mutually acceptable terms of the applicable Schedule (as
described in the next sentence), provide such requested additional service
provided that (i) the GGP Entities have adequate resources to provide such
service, (ii) such service can be provided without unreasonable disruption
to the GGP Entities’ businesses and (iii) the provision of such service
will not violate (whether directly or by virtue of a cross-default) a material
contract or agreement of a GGP Entity or result in a violation of applicable
Law (such additional services, the “Additional Services”).  In connection with any request for Additional
Services in accordance with this Section 2.03(a), the GGP Service
Manager and the Spinco Service Manager shall in good faith negotiate the terms
of a supplemental Schedule, which terms shall be consistent with the terms of,
and the pricing methodology used for, similar Services provided under this
Agreement.  The Parties shall agree to
the applicable Service Charge and the supplemental Schedule shall describe in
reasonable detail the nature, scope, service period(s), termination provisions
and other terms applicable to such Additional Services.  Each supplemental Schedule, as agreed to in
writing by the Parties, shall be deemed part of this Agreement as of the date
of such Schedule and the Additional Services set forth therein shall be deemed “Services”
provided under this Agreement, in each case subject to the terms and conditions
of this Agreement.


 


(b)           After the Plan Effective Date, if (i) (x) Spinco
requests GGP to increase, relative to historical levels prior to the Plan
Effective Date, the volume, amount, level or frequency, as applicable, of any
Service provided by GGP and (ii) such increase is reasonably determined by
Spinco as necessary for Spinco to operate its businesses (such increases, the “Service
Increases”), then GGP shall, subject to the negotiation of mutually
acceptable terms of the applicable Schedule (as described in the next
sentence), provide the Service Increases in accordance with such request; provided,
that GGP shall not be obligated to provide any Service Increase if it does not,
in its reasonable judgment, have adequate resources to provide such 


 


4

















 


Service Increase or if the provision of such Service
Increase would significantly disrupt the operation of any of its businesses or
violate an existing material contract or agreement or applicable Law.  In connection with any request for Service
Increases in accordance with this Section 2.03(b), the GGP Service
Manager and the Spinco Service Manager shall in good faith negotiate the terms
of an amendment to the applicable Schedule, which amendment shall be consistent
with the terms of, and the pricing methodology used for, the applicable
Service.  Each amended Schedule, as
agreed to in writing by the Parties, shall be deemed part of this Agreement as
of the date of such amendment to the Schedule and the Service Increases set forth
therein shall be deemed a part of the “Services” provided under this Agreement,
in each case subject to the terms and conditions of this Agreement.


 


Section 2.04.  Transition Service Managers.  (a) GGP hereby appoints and designates
the individual holding the GGP position set forth on Exhibit II to
act as its initial service manager (the “GGP Overall Service Manager”),
who will be directly responsible for coordinating and managing the delivery of
the Services and have authority to act on GGP’s behalf with respect to matters
relating to this Agreement.  In addition,
GGP hereby appoints, with respect to each Service, the individual set forth on
the applicable Schedule as its initial service manager (each such manager, a “GGP
Service Manager”) with respect to such Service, who will be directly responsible
for coordinating and managing the delivery of such Service on a day-to-day
basis.  The GGP Service Managers will
work with the personnel of the GGP Entities to periodically address issues and
matters raised by Spinco relating to this Agreement.  The GGP Overall Service Manager will oversee
the GGP Service Managers and will be responsible for coordinating the overall
delivery of the Services. 
Notwithstanding the notice requirements of Section 10.05,
all communications from Spinco to GGP pursuant to this Agreement regarding
routine matters involving the Services set forth on the Schedules shall be made
through the applicable GGP Service Manager, or such other individual as
specified by the applicable GGP Service Manager in writing and delivered to Spinco
by email or facsimile transmission with receipt confirmed.  GGP shall notify Spinco of the appointment of
a different GGP Overall Service Manager or GGP Service Manager, if necessary,
in accordance with Section 10.05.


 


(b)           Spinco hereby appoints and designates the individual
holding the Spinco position set forth on Exhibit II to act as its
initial service manager (the “Spinco Overall Service Manager”), who will
be directly responsible for coordinating and managing the receipt of the
Services and have authority to act on Spinco’s behalf with respect to matters
relating to this Agreement.  In addition,
Spinco hereby appoints, with respect to each Service, the individual set forth
on the applicable Schedule as its initial service manager (each such manager, a
“Spinco Service Manager”) with respect to such Service, who will be
directly responsible for coordinating and managing the receipt of such Service
on a day-to-day basis.  The Spinco
Service Managers will work with the personnel of Spinco Entities to periodically
address issues and matters raised by GGP relating to this Agreement.  The Spinco Overall Service Manager will
oversee the Spinco Service Managers and will be responsible for coordinating
the overall receipt of the Services. 
Notwithstanding the notice requirements of Section 10.05,
all communications from GGP to Spinco pursuant to this Agreement regarding
routine matters involving the Services set forth on the Schedules shall be made
through the applicable Spinco Service Manager or such other individual as
specified by the applicable Spinco Service Manager in writing and delivered to
GGP by email or facsimile transmission with receipt confirmed.  Spinco shall notify GGP of 


 


5

















 


the appointment of a different Spinco Overall
Service Manager or Spinco Service Manager, if necessary, in accordance with Section 10.05.


 


Section 2.05.  Personnel.  (a) GGP will make available such
appropriately qualified personnel as may be reasonably necessary to provide the
Services, and will use reasonable efforts to make available personnel
specifically requested by Spinco. 
Notwithstanding the foregoing, GGP will have the right, in its sole
reasonable discretion, to (i) designate which personnel it will assign to
perform each Service, and (ii) remove and replace such personnel at any
time with personnel of similar qualifications and experience levels, if such
action would not reasonably be expected to cause a material increase in costs
and/or a material decrease in level of service for Spinco with respect to such
Service; provided, however, that GGP will use its commercially
reasonable efforts to limit the disruption to Spinco in the transition of the
Services to different personnel.


 


(b)           In the event that the provision of any Service by GGP
requires, as set forth in the Schedules, the cooperation and services of the
applicable personnel of Spinco, Spinco will make available to GGP such
personnel (who shall be appropriately qualified for purposes of the provision
of such Service by GGP) as may be necessary for GGP to provide such Service.


 


Section 2.06.  No Duplication.


 


(a)           GGP shall not charge any Service Charges under this
Agreement or any other amounts for any Services performed by any GGP Employees
if, and to the extent that, the employees performing such Services are doing so
pursuant to the Employee Leasing Agreement, and the costs of such employees are
being reimbursed pursuant thereto.


 


(b)           GGP shall not charge any Service Charges or other amounts
for any Services if, and to the extent that, such Service Charges are
duplicative of services performed under the Employee Leasing Agreement or the
Employee Matters Agreement.


 


ARTICLE III


 


GGP MATERIALS


 


Section 3.01.  Corporate Policies.  (a) At the Plan Effective Date or reasonably
promptly thereafter, GGP shall make available to Spinco its then existing
policies and manuals that GGP determines in good faith are reasonably necessary
for the operation of the Spinco Business (the “GGP Materials”).  Subject to the terms and conditions of this
Agreement, GGP grants to Spinco a non-exclusive, royalty-free, fully paid-up,
worldwide license to create or have created any derivative works or materials
based on the GGP Materials for distribution to employees and suppliers of
Spinco and use such materials in the operation of the Spinco Business in
substantially the same manner as the GGP Materials were used by GGP prior to
the Distribution.  It is understood and
agreed that GGP makes no representation or warranty, express or implied, as to
the accuracy or completeness of any of the GGP Materials, as to the
noninfringement of any of the GGP Materials or as to the suitability of any of
the GGP Materials for use by Spinco in respect of its business or otherwise.  Access to any GGP Materials shall be


 


6






 


 












 


limited to those Representatives of Spinco who need
access in order to perform their responsibilities.


 


(b)           Notwithstanding the
foregoing, the text of any materials related to or based upon any of the GGP
Materials created by, for or on behalf of Spinco may not contain any references
to the GGP Entities (or any use of the GGP Entities’ marks, names, trade dress,
logos or other source or business identifiers, including the GGP Name and GGP
Marks), the GGP Entities’ publications, the GGP Entities’ personnel (including
senior management), the GGP Entities’ management structures or any other
indication that in each instance such materials are based upon any of the GGP
Materials.


 


Section 3.02.  Limitation on Rights and Obligations with
Respect to the GGP Materials.


 


(a)           Spinco acknowledges and
agrees that, except as expressly set forth above, GGP reserves all rights
(including all Intellectual Property rights) in, to and under the GGP Materials
and no rights with respect to ownership or use, except as otherwise expressly
provided in this Agreement, shall vest in Spinco.


 


(b)           GGP shall have no obligation
to (i) notify Spinco of any changes or proposed changes to any of the GGP
Materials, (ii) include Spinco in any consideration of proposed changes to
any of the GGP Materials, (iii) provide draft changes of any of the GGP
Materials to Spinco for review and/or comment or (iv) provide Spinco with
any updated materials relating to any of the GGP Materials except to the extent
such changes would affect the provision of Services in accordance with the
terms hereof.  The Parties acknowledge
and agree that the GGP Materials are the Confidential Information of GGP.  Spinco shall use at least the same degree of
care to prevent and restrain the unauthorized use or disclosure of any
materials created by, for or on behalf of Spinco that are based upon any of the
GGP Materials as it uses for its other confidential information of a like
nature, but in no event less than a reasonable degree of care.  Spinco will allow GGP reasonable access to
its personnel and information as reasonably necessary to determine Spinco’s
compliance with the provisions set forth above; provided, however,
such access shall not unreasonably interfere with any of the business or
operations of Spinco.  Subject to Section 8.01,
in the event that GGP determines that Spinco has not materially complied with
some or all of its obligations with respect to any or all of the GGP Materials,
and such noncompliance is not cured within thirty (30) days following Spinco’s receipt
of written notice thereof from GGP, GGP may terminate Spinco’s rights with
respect to such GGP Materials upon written notice to Spinco and, in such case,
GGP shall be entitled to require such GGP Materials to be returned to GGP or
destroyed and any materials created by or for Spinco that are based upon such
GGP Materials to be destroyed (with such destruction certified by Spinco in
writing to GGP promptly after such termination).


 


(c)           If Spinco determines to
cease to avail itself of any of the GGP Materials or upon expiration or
termination of any period during which Spinco is permitted to use any of the
GGP Materials, GGP and Spinco shall cooperate in good faith to take reasonable
and appropriate actions to effectuate such determination, expiration or
termination, to arrange for the return to GGP or destruction of such GGP
Materials and to protect GGP’s rights and interests in such GGP Materials.


 


7

















 


ARTICLE IV


 


OTHER ARRANGEMENTS AND
ADDITIONAL AGREEMENTS


 


Section 4.01.  Software and Software Licenses.  If
and to the extent requested by Spinco, GGP shall use commercially reasonable
efforts to (x) obtain permission from third-party licensors of computer
software to allow GGP to provide services to Spinco as required hereunder and (y) assist
Spinco in its efforts to obtain licenses (or other appropriate rights) to use,
duplicate and distribute, as necessary and applicable, certain computer
software necessary for GGP to provide, or Spinco to receive, Services (which
assistance shall include to the extent appropriate providing Spinco the
opportunity to receive a copy of, or participate in, any communication between
GGP and the applicable third party licensor in connection therewith); provided,
however, that GGP and Spinco shall mutually agree upon the specific
types and quantities of any such software licenses; provided, further,
that GGP shall not be required to pay any fees or other payments unless such
fees and payments are reimbursed fully by Spinco or incur any obligations or
liabilities to enable GGP to provide such services or enable Spinco to obtain
any such license or rights; provided, further, that GGP shall not
be required to seek broader rights or more favorable terms for Spinco than
those applicable to GGP prior to the date of this Agreement or as may be
applicable to GGP from time to time hereafter; and, provided, further,
that Spinco shall bear only those costs that relate directly to obtaining such
licenses (or other appropriation rights), which shall not include any payments
relating to the discharge of Excluded Liabilities which are not related to the
provision of Services.  The Parties
acknowledge and agree that there can be no assurance that GGP’s efforts will be
successful or that Spinco will be able to obtain such licenses or rights on
acceptable terms or at all and, where GGP enjoys rights under any enterprise or
site license or similar license, the Parties acknowledge that such license
typically precludes partial transfers or assignments or operation of a service
bureau on behalf of unaffiliated entities. 
In the event that Spinco is unable to obtain such software licenses, the
Parties shall work together using commercially reasonable efforts to obtain an
alternative software license or modification to an existing GGP license to
allow GGP to provide, or Spinco to receive, such Services, and the Parties
shall negotiate in good faith an amendment to the applicable Schedule to
reflect any such new arrangement, which amended Schedule shall not require
Spinco to pay for any fees, expenses or costs relating to the software license
that Spinco was unable to obtain pursuant to the provisions of this Section 4.01.


 


Section 4.02.  GGP Computer-Based and Other Resources.


 


(a)           As of the Plan Effective Date,
except as otherwise expressly provided in the Separation Agreement, in any
Schedule hereto, or in any other Transaction Documents, Spinco and its
Subsidiaries shall have no further access to, and GGP shall have no obligation
to otherwise provide access to, the GGP Intranet, and Spinco shall have no
access to, and GGP shall have no obligation to otherwise provide access to,
computer-based resources (including access to GGPI’s or its Subsidiaries’
computer networks and databases) that require a password or are available on a
secured access basis only. Notwithstanding the foregoing, from and after the
Plan Effective Date, GGP shall use reasonable efforts to make available to
Spinco an intranet (the “Spinco Intranet”) accessible by Spinco and its
Subsidiaries that contains (i) the GGP Materials and (ii) any
materials that GGP determines in good faith that any member of the Spinco Group
needs to access in connection with the performance or delivery of any Service.


 


8

















 


(b)           From and after the Plan
Effective Date, Spinco and its Subsidiaries shall cause all of their personnel
having access to the GGP Intranet or such other computer software, networks,
hardware, technology or computer-based resources pursuant to the Separation
Agreement, any Transaction Document or in connection with performance, receipt
or delivery of a Service to comply with all reasonable security guidelines
(including physical security, network access, Internet security,
confidentiality and personal data security guidelines) of GGPI and its
Subsidiaries (of which GGP provides Spinco notice).  Spinco shall ensure that the access
contemplated by this Section 4.02 shall be used by such personnel
only for the purposes contemplated by, and subject to the terms of, this
Agreement.


 


Section 4.03.  Spinco Computer-Based and Other Resources.  From and after the date of this Agreement,
GGP and its Subsidiaries shall cause all of their personnel having access to
the Spinco Intranet or such other computer software, networks, hardware,
technology or computer based resources pursuant to the Separation Agreement,
any Transaction Document or in connection with performance, receipt or delivery
of a Service to comply with all reasonable security guidelines (including
physical security, network access, internet security, confidentiality and
personal data security guidelines) of Spinco and its Subsidiaries (of which
Spinco provides GGP notice).  GGP shall
ensure that the access contemplated by this Section 4.03 shall be
used by such personnel only for the purposes contemplated by, and subject to
the terms of, this Agreement.


 


Section 4.04.  Access.  (a) Spinco shall, and shall cause its
Subsidiaries to, allow GGP and its Representatives reasonable access to the
facilities of Spinco necessary for GGP to fulfill its obligations under this
Agreement.


 


(b)           Notwithstanding the other
rights of access of the Parties under this Agreement, each Party shall, and
shall cause its Subsidiaries to, afford the other Party, its Subsidiaries and
Representatives reasonable access, upon reasonable notice, during normal
business hours to the facilities, information, systems, infrastructure, and
personnel of the other Party as reasonably necessary for the other Party to
verify the adequacy of internal controls over information technology, reporting
of financial data and related processes employed in connection with the
Services, including in connection with verifying compliance with Section 404
of the Sarbanes-Oxley Act of 2002; provided, however, such access
shall not unreasonably interfere with any of the business or operations of such
Party or its Subsidiaries.


 


Section 4.05.  Insider Trading Policy.  Each of the Parties hereby agrees that it
will instruct its Representatives that it is a violation of applicable Law for
any Representative to purchase or sell securities of the other Party based on
non-public information obtained in connection with the performance of this
Agreement.


 


Section 4.06.  Cooperation.  It is understood that it will require the
significant efforts of both Parties to implement this Agreement and to ensure
performance of this Agreement by the Parties at the agreed upon levels in
accordance with all of the terms and conditions of this Agreement. The Parties
will cooperate, acting in good faith and using commercially reasonable efforts,
to effect a smooth and orderly transition of the Services provided under this
Agreement from GGP to Spinco (including repairs and maintenance Services and
the assignment or transfer of the rights and obligations under any third-party
contracts relating to the Services) and Spinco 


 


9

















 


agrees that it will use commercially reasonable
efforts to eliminate its need for the Services as quickly as practicable; provided,
however, that this Section 4.06 shall not require either
Party to incur any out-of-pocket costs or expenses unless and except as
expressly provided in this Agreement or otherwise agreed to in writing by the
Parties (acknowledging that Spinco will be required to incur costs and expenses
in conjunction with eliminating its need for the Services).


 


ARTICLE V


 


COSTS AND DISBURSEMENTS


 


Section 5.01.  Costs and Disbursements.  (a) Spinco shall pay to GGP a fee for
each Service (such fee constituting a “Service Charge” and, the fees for
all Services collectively, “Service Charges”) equal to the sum of
(A) the product of (i) the Cost Multiplier multiplied by
(ii) the applicable Service Resource Cost plus (B) the amount
of any Out-of-Pocket Expenses incurred with respect to such Service; provided,
however, that the Cost Multiplier shall be held constant at 110% for the
term of this Agreement with respect to Services in support of the JD Edwards
application (including, for the avoidance of doubt, the applicable Services set
forth in Schedule A-7: Accounting and Schedule A-10: Information Technology
Services), in each case solely to the extent such Services are in support of
the JD Edwards application.


 


(b)           GGP shall invoice Spinco for
the Service Charges monthly in arrears; provided that the Service
Charges shall be pro rated for any partial month.  Spinco shall pay the amount of each such
invoice by wire transfer or check to GGP within thirty (30) days of the receipt
of each such invoice.  If Spinco fails to
pay such amount (other than any portion of such amount being disputed in good
faith in accordance with the terms of this Agreement) by such date, Spinco
shall be obligated to pay to GGP, in addition to the amount due, interest
thereon at an annual percentage rate of ten percent (10%) (the “Interest Rate”)
accruing from the date the payment was due through the date of actual
payment.  Each invoice shall specify, for
each type of Service, (A) (i) the aggregate number of hours GGP
Employees in each group level set forth on Exhibit I spent performing such
Service and (ii) the Direct Payroll Costs for each such group level (or
the calculation under a different pricing methodology, as applicable), (B) the
Cost Multiplier in effect and (C) any Out-of-Pocket Expenses incurred with
respect to such Service.  Together with
any invoice for Service Charges, GGP shall provide Spinco with data and
documentation (including documentation of Out-of-Pocket Expenses) as reasonably
requested by Spinco for the purpose of verifying the accuracy of the
calculation of such Service Charges; provided, however, that GGP
shall provide Spinco with copies of all applicable third-party invoices as soon
as reasonably practicable following receipt by GGP, it being understood that
GGP’s receipt of applicable third-party invoices may be delayed for thirty (30)
or more days.


 


(c)           At any time during the term
of this Agreement, and for two (2) years after the expiration or
termination of this Agreement, Spinco or its auditors or other reputable
accounting firm, upon ten (10) business days’ prior written notice to GGP,
may audit the books and records of the GGP Group relating to this Agreement for
the purpose of verifying the Service Charges (at Spinco’s sole expense).  GGP shall, and shall cause its Affiliates to,
reasonably cooperate in such audit, make available on a timely basis the
information reasonably required to conduct the review, and assist the
designated representatives of Spinco or its auditors as reasonably necessary.  GGP shall, and shall cause its Affiliates to,
retain all such books and 


 


10

















 


records relating to this Agreement and the
performance of the Services for two (2) years after the expiration or
termination of this Agreement or such longer period as may be required by
applicable law.  GGP shall refund any
overcharges or other amounts owed to Spinco, occurring at any time during the
term of this Agreement, disclosed by such audit, within thirty (30) days after
the completion of such audit.


 


Section 5.02.    Taxes.


 


(a)           Without limiting any
provisions of this Agreement, Spinco shall pay any sales, use and other similar
taxes imposed on, or payable with respect to, any Services provided to it under
this Agreement; provided, however, that Spinco shall not pay, or
be responsible for, any applicable income, franchise or gross receipts taxes
imposed on, or payable with respect to, the income derived by GGP from
providing these Services to Spinco.


 


(b)           Notwithstanding anything to
the contrary in Section 5.02(a) or elsewhere in this
Agreement, Spinco shall be entitled to withhold from any payments to GGP any
such taxes that Spinco is required by law to withhold and shall pay over such
taxes to the applicable taxing authority.


 


Section 5.03.  No Right to Set-Off.  Spinco shall pay the full amount of Service
Charges and shall not set-off, counterclaim or otherwise withhold any amount
owed to GGP under this Agreement on account of any obligation owed by GGP to
Spinco that has not been finally adjudicated, settled or otherwise agreed upon
by the Parties in writing.


 


ARTICLE VI


 


STANDARD FOR SERVICE


 


Section 6.01.  Standard for Service.  Except where GGP is restricted by an existing
Contract with a third party or by Law, GGP agrees (i) to perform the
Services such that the nature, quality, standard of care and the service levels
at which such Services are performed are no less than that which are
substantially similar to the nature, quality, standard of care and service
levels at which the same or similar services were performed by or on behalf of
GGP prior to the Plan Effective Date (or, if not so previously provided, then
substantially similar to that which are applicable to similar services provided
to GGP’s Subsidiaries or other business components), but in any event, in at
least a good and workmanlike manner in accordance with past practice; (ii) upon
receipt of written notice from Spinco identifying any outage, interruption or
other failure of any Service, to respond to such outage, interruption or other
failure of any Services in a manner that is no less than that which is
substantially similar to the manner in which GGP or its Subsidiaries responded
to any outage, interruption or other failure of the same or similar services
prior to the Plan Effective Date (the Parties acknowledge that an outage,
interruption or other failure of any Service shall not be deemed to be a breach
of the provisions of this Section 6.01 so long as GGP complies with
this clause (ii)).  As of or following
the date of this Agreement, if GGP is or becomes aware of any restriction on
GGP by an existing Contract with a third-party that would restrict the nature,
quality, standard of care or service levels applicable to delivery of the
Services to be provided by GGP to Spinco, GGP shall (x) promptly notify
Spinco of any such restriction (which notice shall in any event promptly 


 


11

















 


follow any change to, or reduction in, the nature,
quality, standard of care or service levels applicable to delivery of the
Services resulting from such restriction), (y) use commercially reasonable
efforts to negotiate an amendment to the Contract to remove such restriction or
otherwise obtain the third party’s consent to allow the Services to be
performed to the standards described in this Section 6.01, and (z) use
commercially reasonable efforts to provide such Services in a manner as closely
as possible to the standards described in this Section 6.01 while
attempting to secure the amendment or consent contemplated by (y).  To the extent that GGP is unable to obtain
the amendment or consent described above, the Parties shall negotiate in good
faith an amendment to the applicable Schedule to reflect any such new
arrangement.


 


Section 6.02.  Disclaimer
of Warranties.  Except as expressly set forth in
this Agreement or any Schedule, the Parties acknowledge and agree that the
Services are provided as-is, that Spinco assumes all risks and liability
arising from or relating to its use of and reliance upon the Services and GGP
makes no representation or warranty with respect thereto.  EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, GGP HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES
REGARDING THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
REPRESENTATION OR WARRANTY IN REGARD TO QUALITY, PERFORMANCE, NONINFRINGEMENT,
COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS OF THE SERVICES FOR A PARTICULAR
PURPOSE.


 


Section 6.03.  Compliance with Laws and Regulations.  Each Party shall be responsible for its own
compliance with any and all Laws applicable to its performance under this
Agreement.  No Party will knowingly take
any action in violation of any such applicable Law that results in liability
being imposed on the other Party.


 


ARTICLE VII


 


LIMITED LIABILITY AND
INDEMNIFICATION


 


Section 7.01.  Consequential and Other Damages.  Notwithstanding anything to the contrary
contained in the Separation Agreement or this Agreement, neither Spinco or its
Subsidiaries, on the one hand, nor GGP or its Subsidiaries, on the other hand,
shall be liable to the other Party or any of its Subsidiaries or
Representatives, whether in contract, tort (including negligence and strict
liability) or otherwise, at law or equity, for any special, indirect, incidental
or consequential damages whatsoever (including lost profits or damages
calculated on multiples of earnings approaches), which in any way arise out of,
relate to or are a consequence of, the performance or nonperformance by the
Party (including any Subsidiaries and Representatives of such Party and, in the
case of GGP, any third-party providers providing the applicable Services) under
this Agreement or the provision of, or failure to provide, or termination of,
any Services under this Agreement, including with respect to loss of profits,
business interruptions or claims of customers (provided, that any liability
with respect to a Third Party Claim shall be considered direct damages).


 


Section 7.02.  Limitation of Liability.  Subject to Section 7.03, the Liabilities
of GGP and its Subsidiaries and Representatives, collectively, under this
Agreement for any act or failure to act in connection herewith (including the
performance or breach of this Agreement), or 


 


12

















 


from the sale, delivery, provision, use or
termination of any Services provided under or contemplated by this Agreement,
whether in contract, tort (including negligence and strict liability) or
otherwise, shall not exceed the greater of (a) the total aggregate Service
Charges (excluding any Out-of-Pocket Expenses included in such Service Charges)
actually paid to GGP by Spinco pursuant to this Agreement and
(b) $10,000,000.


 


Section 7.03.  Obligation to Reperform and GGP Indemnity.  In the event of any breach of this Agreement
by GGP with respect to the provision of any Services, GGP shall
(a) promptly correct in all material respects any error or defect
resulting in such breach or reperform in all material respects such Services at
the request of Spinco and at the sole cost and expense of GGP and (b) subject
to the limitations set forth in Sections 7.01 and 7.02,
indemnify Spinco and its Subsidiaries and Representatives (each, a “Spinco
Indemnified Party”) for Liabilities (including direct damages, whether
arising out of a Third Party Claim or otherwise) attributable to such breach by
GGP; provided, however, that, to the extent any such breach can
be cured through reperformance, the reperformance remedy set forth in Section 7.03(a) shall
be the sole and exclusive remedy of Spinco for such portion of such breach; provided,
further, however, that GGP shall indemnify each Spinco
Indemnified Party to the extent any such party incurs indemnifiable losses that
cannot be cured through reperformance. 
Any request for reperformance in accordance with Section 7.03(a) by
Spinco must be in writing and specify in reasonable detail the particular error
or defect resulting in such breach.


 


Section 7.04.  Release and Spinco Indemnity.  Subject to Section 7.01, Section 7.02
and Section 7.03, Spinco hereby releases GGP and its Subsidiaries
and Representatives (each, a “GGP Indemnified Party”), and Spinco hereby
agrees to indemnify, defend and hold harmless each such GGP Indemnified Party
from and against any and all Liabilities arising from, relating to or in
connection with the use of any Services by Spinco or any of its Subsidiaries,
Representatives or other Persons using such Services, except to the extent that
such Liabilities arise out of, relate to or are a consequence of the applicable
GGP Indemnified Party’s bad faith, gross negligence or willful misconduct.


 


Section 7.05.  Indemnification Procedures.  The provisions of Article V of the
Separation  Agreement shall govern claims
for indemnification under this Agreement.


 


Section 7.06.  Liability for Payment Obligations.  Nothing in this Article VII shall
be deemed to eliminate or limit, in any respect, Spinco’s express obligation in
this Agreement to pay Service Charges for Services rendered in accordance with
this Agreement.


 


Section 7.07.  Exclusion of Other Remedies.  The provisions of Sections 7.03 and 7.04
of this Agreement shall be the sole and exclusive remedies for any claim, loss,
damage, expense or liability, whether arising from statute, principle of common
or civil law, principles of strict liability, tort, contract or otherwise under
this Agreement.


 


13

















 


ARTICLE VIII


 


DISPUTE RESOLUTION


 


Section 8.01.  Dispute Resolution.


 


(a)           In the event of any dispute,
controversy or claim arising out of or relating to the transactions
contemplated by this Agreement, or the validity, interpretation, breach or
termination of any provision of this Agreement, or calculation or allocation of
the costs of any Service, including claims seeking redress or asserting rights
under any Law (each, a “Dispute”), GGP and Spinco agree that the GGP
Overall Service Manager and the Spinco Overall Service Manager (or such other
Persons as GGP and Spinco may designate) shall negotiate in good faith in an
attempt to resolve such Dispute amicably. 
If such Dispute has not been resolved to the mutual satisfaction of the
Overall Service Managers within fifteen (15) days after the initial written
notice of the Dispute by one Party to another Party (or such longer period as
the Parties may agree), then the respective Chief Executive Officers of GGPI
and Spinco shall negotiate in good faith in an attempt to resolve such Dispute
amicably.  If such Dispute has not been
resolved to the mutual satisfaction of the Chief Executive Officers of GGPI and
Spinco within fifteen (15) days after the Dispute was referred to them for
negotiation (or such longer period as the Parties may agree), then the Dispute
shall be resolved in accordance with the dispute resolution process set forth
in Sections 7.3 and 7.4 of the Separation Agreement; provided, that
such dispute resolution process shall not modify or add to the remedies
available to the Parties under this Agreement.


 


(b)           Notwithstanding anything to
the contrary in this Agreement, either Party may immediately seek equitable
relief (without the necessity of posting a bond) including, without limitation,
temporary injunctive relief, against the other Party with respect to any and
all equitable remedies sought in connection with this Agreement in accordance
with Article VII of the Separation Agreement.


 


(c)           In any Dispute regarding the
amount of a Service Charge, if after such Dispute is finally resolved pursuant
to the dispute resolution process set forth or referred to in Section 8.01(a),
it is determined that the Service Charge that GGP has invoiced Spinco, and that
Spinco has paid to GGP, is greater or less than the amount that the Service
Charge should have been, then (a) if it is determined that Spinco has
overpaid the Service Charge, GGP shall within ten (10) business days after
such determination reimburse Spinco an amount of cash equal to such
overpayment, plus interest thereon at the Interest Rate accruing from the date
of such overpayment to the time of reimbursement by GGP, and (b) if it is
determined that Spinco has underpaid the Service Charge, Spinco shall within
ten (10) business days after such determination pay GGP an amount of cash
equal to such underpayment, plus interest thereon at the Interest Rate accruing
from the date of such underpayment (or when such payment was due if not paid at
all) to the time of payment by Spinco.


 


ARTICLE IX


 


TERM AND TERMINATION


 


Section 9.01.  Term and Termination.  (a) This Agreement shall commence
immediately upon the Plan Effective Date and shall terminate upon the earlier
to occur of: (i) the last date on which either Party is obligated to
provide any Service to the other Party and the completion of all other
obligations hereunder in accordance with the terms of this Agreement and (ii) the
mutual written agreement of the Parties to terminate this Agreement in its
entirety.  Notwithstanding anything to
the contrary contained in this Agreement or any Schedule, 


 


14

















 


(i) GGP’s obligation to provide, or cause to be
provided, Services to the Spinco Entities shall terminate, at GGP’s sole
option, with respect to any Spinco Entity that Spinco, directly or indirectly,
sells, or otherwise transfers ownership and control of, to a non-Spinco Entity
(e.g., pursuant to equity sale, asset sale, merger or otherwise) and (ii) in
no event shall the provision of any Service extend beyond the date that is
twenty-four (24) months from the Plan Effective Date.


 


(b)           Without prejudice to Spinco’s
rights with respect to a Force Majeure, Spinco may from time to time terminate
this Agreement with respect to the entirety of any individual Service but not a
portion thereof, (A) for any reason or no reason upon providing to GGP the
requisite prior written notice for such termination as specified in the
applicable Schedule or, if no such notice period is provided in the applicable
Schedule, on five (5) days’ prior written notice, or (B) if GGP has
failed to perform any of its material obligations under this Agreement with
respect to such Service, and such failure shall continue to exist thirty (30)
days after receipt by GGP of written notice of such failure from Spinco; and (ii) GGP
may terminate this Agreement with respect to one or more Services, in whole but
not in part, at any time upon prior written notice to Spinco if Spinco has
failed to perform any of its material obligations under this Agreement relating
to such Services, including making payment of any Service Charges when due, and
such failure shall be continued uncured for a period of thirty (30) days after
receipt by Spinco of a written notice of such failure from GGP.  The relevant Schedule shall be updated to
reflect any terminated Service.  In the
event that any Service is terminated other than at the end of a month, the
Service Charge associated with such Service shall be pro-rated as
applicable.  In the event that Spinco
terminates any Service pursuant to clause (A) of this Section 9.01(b),
the GGP Group shall have the right to (i) terminate or discontinue any
contract or other arrangement with an unaffiliated third party to the extent
such contract or arrangement relates to such terminated Service, and any
charges and out-of-pocket costs, fees and expenses payable by any member of the
GGP Group in connection with the exercise of such right (other than severance
obligations or other amounts payable to any GGP Employee) shall be reimbursed
by Spinco promptly upon GGP’s presentation to Spinco of the applicable third
party invoice therefor and (ii) charge Spinco for any applicable Service
Charges incurred in connection with the orderly unwinding and transfer of such
terminated Service.


 


(c)           Without prejudice to the
rights and obligations of the Parties in Section 2.03 and Section 4.06,
either Party may from time to time request a reduction in part of the scope or
amount of any Service.  If requested to
do so by the other Party, each Party agrees to discuss in good faith
appropriate reductions to the relevant Service Charges in light of all relevant
factors including the costs and benefits to the Parties of any such
reductions.  If, after such discussions,
Spinco and GGP do not agree to any requested reduction of the scope or amount
of any Service and the relevant Service Charges in connection therewith, then
there shall be no change to the scope or amount of any Services or Service
Charges under this Agreement.  In the
event that Spinco and GGP agreed to any reduction of Service and the relevant
Service Charges, the relevant Schedule shall be updated to reflect such reduced
Service and relevant Service Charges if any. 
In the event that any Service is reduced other than at the end of a
month, the Service Charge associated with such Service for the month in which
such Service is reduced shall be pro-rated appropriately.


 


Section 9.02.  Effect of Termination.  Upon termination of any Service pursuant to
this Agreement, GGP will have no further obligation to provide the terminated
Service, and 


 


15

















 


Spinco will have no obligation to pay any future
Service Charges relating to any such Service; provided, that Spinco
shall remain obligated to GGP for the Service Charges owed and payable in
respect of Services provided prior to the effective date of termination as set
forth in the Schedule relating to such Service. 
In connection with termination of any Service, the provisions of this
Agreement not relating solely to such terminated Service shall survive any such
termination, and in connection with a termination of this Agreement, Article I,
Article VII (including liability in respect of any indemnifiable
Liabilities under this Agreement arising or occurring on or prior to the date
of termination), Article VIII, Article IX, Article X,
all confidentiality obligations under this Agreement and liability for all due
and unpaid Service Charges shall continue to survive indefinitely.


 


Section 9.03.  Force Majeure.  (a) GGP (and any Person acting on its
behalf) shall not have any liability or responsibility for failure to fulfill any
obligation under this Agreement 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; provided, that (i) GGP
(or such Person) shall have exercised commercially reasonable efforts to
minimize the effect of Force Majeure on its obligations; and (ii)  the
nature, quality and standard of care that GGP shall provide in delivering a
Service after a Force Majeure shall be substantially the same  as the nature, quality and standard of care
that GGP provides to its Subsidiaries and its other business components with
respect to such Service.  In the event of
an occurrence of a Force Majeure, GGP shall give notice of suspension as soon
as reasonably practicable to the other Party stating the date and extent of
such suspension and the cause thereof, and GGP shall resume the performance of
such obligations as soon as reasonably practicable after the removal of such
cause.


 


(b)           During the period of a Force
Majeure, Spinco shall be entitled to seek an alternative service provider with
respect to such Service(s) and shall be entitled to permanently terminate
such Service(s) (and shall be relieved of the obligation to pay Service
Charges for such Services(s) throughout the duration of such Force
Majeure) if a Force Majeure shall continue to exist for more than fifteen (15)
consecutive days, it being understood that Spinco shall not be required to
provide any advance notice of such termination to GGP in connection therewith.


 


ARTICLE X


 


GENERAL PROVISIONS


 


Section 10.01.  No Agency.  Nothing in this Agreement shall be deemed in
any way or for any purpose to constitute any Party an agent of another
unaffiliated Party in the conduct of such other Party’s business.  GGP shall act as an independent contractor
and not as the agent of Spinco in performing such Services, maintaining control
over GGP Employees, GGP’s subcontractors and their employees and complying with
all withholding of income and other requirements of Law, whether federal,
state, local or foreign and no member of the GGP Group shall have any authority
to bind any member of the Spinco Group by contract or otherwise.


 


Section 10.02.  Subcontractors.  GGP may hire or engage one or more
subcontractors to perform any or all of its obligations under this Agreement; provided,
that


 


16






 


 


 


 


 


 


 












 


(i) GGP shall use the same degree of care in
selecting any such subcontractor as it would if such contractor was being
retained to provide similar services to GGP, (ii) GGP shall in all cases
remain primarily responsible for all of its obligations under this Agreement
with respect to the scope of the Services, the standard for services as set
forth in Article VI and the content of the Services provided to
Spinco and (iii) without the prior written consent of the applicable
Spinco Service Manager (not to be unreasonably withheld, conditioned or
delayed), GGP shall not remove and/or replace any subcontractor if such action
would reasonably be expected to cause a material increase in cost with respect
to the applicable Service. 
Notwithstanding the foregoing, (x) Spinco (or any other member of
the Spinco Group) shall have the right to hire or engage any subcontractor
directly and (y) if GGP does hire or engage any subcontractor to provide
any Service hereunder, then, notwithstanding any provision of this Agreement or
any other Transaction Document to the contrary, the applicable Service Charge
for the provision of such Service performed by such subcontractor shall be only
the amount actually paid to such subcontractor for providing such Service,
without any additional charge or mark up.


 


Section 10.03.  Treatment of Confidential Information.


 


(a)           The Parties shall not, and shall cause their respective
Representatives and all other Persons providing Services or having access to
information of the other Party that is known to such Party as confidential or
proprietary (“Confidential Information”) not to, disclose to any other
Person or use, except for purposes of this Agreement, any Confidential
Information of the other Party; provided, however, that each
Party may disclose Confidential Information of the other Party and to the
extent permitted by applicable Law: (i) to its Representatives on a
need-to-know basis in connection with the performance of such Party’s
obligations under this Agreement; (ii) in any report, statement, testimony
or other submission required to be made to any Governmental Authority having
jurisdiction over the disclosing Party; or (iii) in order to comply with
applicable Law, or in response to any summons, subpoena or other legal process
or formal or informal investigative demand issued to the disclosing Party in
the course of any litigation, investigation or administrative proceeding.  In the event that a Party becomes legally
compelled (based on advice of counsel) by deposition, interrogatory, request
for documents, subpoena, civil investigative demand or similar judicial or
administrative process to disclose any Confidential Information of the other
Party, such disclosing Party shall provide the other Party with prompt prior
written notice of such requirement, and, to the extent reasonably practicable,
cooperate with the other Party (at such other Party’s expense) to obtain a
protective order or similar remedy to cause such Confidential Information not
to be disclosed, including interposing all available objections thereto, such
as objections based on settlement privilege. 
In the event that such protective order or other similar remedy is not
obtained, the disclosing Party shall furnish only that portion of the
Confidential Information that has been legally compelled, and shall exercise
its commercially reasonable efforts (at such other Party’s expense) to obtain
assurance that confidential treatment will be accorded such Confidential
Information.


 


(b)           Each Party shall, and shall cause its Representatives to
protect the Confidential Information of the other Party by using the same
degree of care to prevent the unauthorized disclosure of such as the Party uses
to protect its own confidential information of a like nature but in any event
not less than reasonable means.


 


17

















 


(c)           Each Party shall cause its Representatives to agree to be
bound by the same restrictions on use and disclosure of Confidential
Information as are binding upon such Party in advance of the disclosure of any
such Confidential Information to them.


 


(d)           The restrictions set forth in Sections 10.03(a) and
(b) shall not prevent either Party from disclosing Confidential
Information which belongs to that Party or (a) is in or enters the public
domain without breach of this Agreement or any other Transaction Document, (b) the
receiving Party was lawfully and demonstrably in possession of prior to first
receiving it from the disclosing Party, (c) the receiving Party can
demonstrate was developed by the receiving Party independently and without use
of or reference to the disclosing Party’s Confidential Information, (d) the
receiving Party receives from a third party without restriction on disclosure
and without breach of a nondisclosure obligation, or (e) is approved by
the other Party for disclosure.


 


(e)           Each Party shall comply with all applicable state, federal
and foreign privacy and data protection Laws that are or that may in the future
be applicable to the provision of Services under this Agreement.


 


Section 10.04.  Further Assurances.  Each Party covenants and agrees that, without
any additional consideration, it shall execute and deliver any further legal
instruments and perform any acts that are or may become necessary to effectuate
this Agreement.


 


Section 10.05.  Notices.  Except with respect to routine communications
by the GGP Service Managers and Spinco Service Managers under Section 2.04,
all notices, requests, claims, demands and other communications under this
Agreement 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 10.05):


 


	
  (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:

  
	
   

  	
   

  
	
   

  	
  The
  Howard Hughes Corporation

  
	
   

  	
  13355
  Noel Road

  
	
   

  	
  Suite 950

  
	
   

  	
  Dallas,
  TX 75240

  



 


18

















 


	
   

  	
  Attention:

  	
  Grant
  Herlitz

  
	
   

  	
  Facsimile:

  	
  (214)
  741-3021

  
	
   

  	
   

  
	
  (iii)

  	
  in each case, with a copy to:

  
	
   

  	
   

  
	
   

  	
  Weil,
  Gotshal & Manges LLP

  
	
   

  	
  767
  Fifth Avenue

  
	
   

  	
  New
  York, NY 10153

  
	
   

  	
  Attention:

  	
  Gary
  Holtzer and Marcia Goldstein

  
	
   

  	
  Facsimile:

  	
  (212)
  310-8007

  



 


Section 10.06.  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 nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by this Agreement
is not affected in any manner materially adverse to any Party.  Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the Parties
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.


 


Section 10.07.  Entire Agreement.  Except as otherwise expressly provided in
this Agreement, this Agreement, the Separation Agreement and the other
Transaction Documents constitute the entire agreement of the Parties with
respect to the subject matter of this Agreement and supersede all prior
agreements and undertakings, both written and oral, between or on behalf of the
Parties with respect to the subject matter of this Agreement.


 


Section 10.08.  No Third-Party Beneficiaries.  Except as provided in Article VII with respect to GGP
Indemnified Parties, this Agreement is for the sole benefit of the Parties and
their permitted successors and assigns and nothing in this Agreement, express
or implied, is intended to or shall confer upon any other Person, including any
union, any current or former GGP Employee or any current or former employee of
Spinco, any legal or equitable right, benefit or remedy of any nature
whatsoever, including any rights of employment for any specified period, under
or by reason of this Agreement.


 


Section 10.09.  Governing Law.  This Agreement (and any claims or disputes arising
out of or related to this Agreement or to the transactions contemplated by this
Agreement or to the inducement of any Party to enter into this Agreement or the
transactions contemplated by this Agreement, whether for breach of contract,
tortious conduct or otherwise and whether predicated on common law, statute or
otherwise) shall in all respects be governed by, and construed in accordance
with, the Laws of the State of New York, including all matters of construction,
validity and performance, in each case without reference to any conflict of Law
rules that might lead to the application of the Laws of any other
jurisdiction.


 


Section 10.10.  Amendment.  No provision of this Agreement, including any
Schedules to this Agreement, may be amended, supplemented or modified except by
a written 


 


19

















 


instrument making specific reference to this
Agreement or any such Schedules to this Agreement, as applicable, signed by all
the Parties.


 


Section 10.11.  Rules of Construction.  Interpretation of this Agreement shall be
governed by the following rules of construction:  (a) 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; (b) references to the
terms Article, Section, paragraph and Schedule are references to the Articles,
Sections, paragraphs and Schedules of this Agreement unless otherwise
specified; (c) references to “$” shall mean U.S. dollars; (d) the
word “including” and words of similar import when used in this Agreement shall
mean “including without limitation,” unless otherwise specified; (e) the
word “or” shall not be exclusive; (f) references to “written” or “in
writing” include in electronic form; (g) provisions shall apply, when
appropriate, to successive events and transactions; (h) the headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement; (i) 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 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; (j) a reference to any Person includes
such Person’s successors and permitted assigns; (k) any reference to “days”
means calendar days unless business days are expressly specified; and (l) when
calculating the period of time before which, within which or following which
any act is to be done or step taken pursuant to this Agreement, the date that
is the reference date in calculating such period shall be excluded, if the last
day of such period is not a business day, the period shall end on the next
succeeding business day.


 


Section 10.12.  Counterparts.  This Agreement may be executed in one or more
counterparts, and by each Party 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
Agreement by facsimile or portable document format (PDF) shall be as effective
as delivery of a manually executed counterpart of this Agreement.


 


Section 10.13.  Assignability.  (a) This Agreement shall not be assigned
by operation of Law or otherwise without the prior written consent of GGP and
Spinco, except that each Party may:


 


(i)            assign all of its rights and obligations under this
Agreement to any of its Subsidiaries; provided, that no such assignment shall release
GGP or Spinco, as the case may be, from any liability or obligation under this
Agreement;


 


(ii)           in connection with the divestiture of any Subsidiary or
business of Spinco to an acquiror that is not a Competitor of GGP, assign to
the acquiror of such Subsidiary or business its rights and obligations as a
recipient with respect to the Services provided to such divested Subsidiary or
business under this Agreement; provided, that (i) no such assignment shall
release GGP or Spinco, as the case may be, from any liability or obligation
under this Agreement, (ii) any and all costs and expenses incurred by
either Party in connection with such 


 


20

















 


assignment (including in connection with clause (iii) of
this proviso) shall be borne solely by the assigning Party, and (iii) the
Parties shall in good faith negotiate any amendments to this Agreement,
including the Annexes and Schedules to this Agreement, that may be necessary or
appropriate in order to assign such Services; and


 


(iii)          in connection with the divestiture of any Subsidiary or
business of Spinco to an acquiror that is a Competitor of GGP, assign to the
acquiror of such Subsidiary or business its rights and obligations as a
recipient with respect to the Services provided to such divested Subsidiary or
business under this Agreement; provided, that (i) no such assignment shall
release GGP or Spinco, as the case may be, from any liability or obligation
under this Agreement, (ii) any and all costs and expenses incurred by
either Party in connection with such assignment (including in connection with
clause (iii) of this proviso) shall be borne solely by the assigning
Party, (iii) the Parties shall in good faith negotiate any amendments to
this Agreement, including the Annexes and Schedules to this Agreement, that may
be necessary or appropriate in order to ensure that such assignment will not (x) materially
and adversely affect the businesses and operations of each of the Parties and
their respective Subsidiaries or (y) create a competitive disadvantage for
GGP with respect to an acquiror that is a Competitor of GGP, and (iv) GGP
shall not be obligated to provide any such assigned Services to an acquiror
that is a Competitor of GGP if the provision of such assigned Services to such
acquiror would disrupt the operation of GGP’s businesses or create a
competitive disadvantage for GGP with respect to such acquiror.


 


(b)           In the event of the (i) merger, amalgamation or
consolidation of Spinco and another Person, (ii) sale of all or
substantially all of the assets of Spinco to another Person, (iii) the
acquisition of a majority of the voting stock of Spinco by any Person or “group”
(within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended) or (iv) the election of, or appointment to, the
board of directors of Spinco of directors constituting a majority of the
directors then serving if such elected or appointed directors have not been
nominated as directors by the Nominating Committee of the board of directors
prior to their election or appointment, then the requirement of GGP to provide
Services hereunder shall automatically terminate without further action by the
Parties thirty (30) days after the occurrence of such event.


 


Section 10.14.  Waiver of Jury Trial.  EACH PARTY TO THIS AGREEMENT WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. 
EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER; AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY TO THIS AGREEMENT
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.14.


 


Section 10.15.        Specific Performance.  The provisions of Section 7.4 of the
Separation  Agreement shall govern
specific performance under this Agreement.


 


21

















 


Section 10.16.  Non-Recourse.  Other than the GGP Group and the Spinco
Group, no past, present or future director, officer, employee, incorporator,
member, partner, stockholder, Affiliate, agent, attorney or representative of
either GGP or Spinco or their Subsidiaries shall have any liability for any
obligations or liabilities of GGP or Spinco, respectively, under this Agreement
or for any claims based on, in respect of, or by reason of, the transactions
contemplated by this Agreement.


 


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


 


22

















 


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


 


 


	
   

  	
  GGP
  LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  General
  Growth Properties, Inc.

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  H. Nolan, Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL
  GROWTH MANAGEMENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  H. Nolan, Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  HOWARD HUGHES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Arthur

  
	
   

  	
   

  	
  Name:

  	
  David
  Arthur

  
	
   

  	
   

  	
  Title:

  	
  Interim
  Chief Executive Officer

  
					



 


Signature Page to Transition Services Agreement