Exhibit
10.1


 


Draft - 09/30/10


 


	
   

  



 


TRANSITION SERVICES
AGREEMENT


 


dated as of [·]


 


between


 


GGP LIMITED PARTNERSHIP,


 


GENERAL GROWTH MANAGEMENT, INC.,


 


and


 


SPINCO, INC.


 


	
   

  



 


 

















 


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

  



 


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  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

















 


TRANSITION SERVICES AGREEMENT


 


This Transition Services Agreement (this “Agreement”),
dated as of [·], 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 Spinco, Inc., 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.


 


“Business Employees” shall have the meaning
ascribed to such term in the Employee Matters Agreement.


 


“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.


 


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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:

  
	
   

  	
   

  
	
   

  	
  Spinco, Inc.

  
	
   

  	
  [INSERT ADDRESS]

  



 


18

















 


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


 


19














 


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
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 


 


20

















 


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 such
GGP’s businesses or create a competitive disadvantage for such 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:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL GROWTH MANAGEMENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPINCO, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Transition Services
Agreement