sc13d


CUSIP No.		370021107	13D	Page		10		of		13

Amendment to Rights Agreement, dated as of February 1, 2000, and the Rights expire on April 16, 2023 if not exercised prior to that date.

The Bucksbaum Limited Partners entered into a Management Limited Partner Agreement dated as of April 6, 1993 with Richards, which was amended and restated as of August 20, 2007 (the “Richards Agreement”). Pursuant to the Richards Agreement, Richards agreed not exercise any of his Rights except as permitted by the Richards Agreement and the Bucksbaum Limited Partners agreed (i) not to exercise their Rights without prior notification to Richards; (ii) Richards may voluntarily join in the exercise of Rights initiated by the Bucksbaum Limited Partners, (iii) at such time as the Bucksbaum Limited Partners are no longer limited partners of GGP Partnership, Richards shall be required to exercise Conversion Rights so Richards is no longer a limited partner of GGP Partnership; and (iv) Richards shall have the right to require the Bucksbaum Limited Partners to purchase all of Richard’s Units for cash.

Martin Bucksbaum (who is now deceased), Matthew Bucksbaum, General Growth Venture L.P. and the Bucksbaum Limited Partners (such persons, entities and trusts, together with their successors and assigns, collectively, the “Investors”) entered into a Registration Rights Agreement with the Issuer (the “Registration Rights Agreement”) dated as of April 15, 1993 pursuant to which the Issuer agreed to provide registration rights for (i) the shares of Common Stock held by the Investors on that date and (ii) the shares of Common Stock acquired by the Investors upon conversion of their Units in GGP Partnership. The Registration Rights Agreement entitles the Investors (at Issuer expense) to one demand registration statement per year and piggyback rights on other registration statements. The registration rights are subject to standard terms and conditions.

Units L.L.C. has succeeded to the rights of the Bucksbaum Limited Partners under the Rights Agreement, the Richards Agreement and the Registration Rights Agreement. The summaries of the terms of the Rights Agreement, the Richards Agreement and the Registration Rights Agreement are not intended to be complete and are qualified in their entirety by reference to the Rights Agreement, the Richards Agreement and the Registration Rights Agreement attached hereto as Exhibits and which are incorporated herein by reference.

M.B. Capital invests in the Common Stock and Units pursuant to the Second Amended and Restated Agreement of Partnership of M.B. Capital Partners III dated as of August 1, 2007 (the “M.B. Capital Agreement”). The M.B. Capital Agreement provides for two divisions of M.B. Capital. Division A, which consists of trusts of which GTC is the trustee, is entitled to 97.375% of the assets and liabilities of M.B. Capital as of August 1, 2007 and 100% of the assets and related liabilities acquired by M.B. Capital from and after August 1, 2007. Division B, which consists of the Matthew Bucksbaum Revocable Trust and GGC is, entitled to 2.625% of all assets and liabilities of M.B. Capital as of August 1, 2007.

The Second Amended and Restated Agreement of Limited Partnership of GGP Partnership, as amended, the M.B. Capital Agreement, as amended, and the Limited Liability Company Agreement of Units L.L.C. are also attached as exhibits hereto and are incorporated herein by reference.


CUSIP No.		370021107	13D	Page		11		of		13

Item 7. Material to be Filed as Exhibits.


Exhibit		Agreement

1.		Rights Agreement dated July 27, 1993, between Issuer and certain other parties named therein (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2005 which was filed with the Securities and Exchange Commission (“SEC”) on March 31, 2006).

2.		Amendment to Rights Agreement dated as of February 1, 2000, between Issuer and certain other parties named therein (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2003 which was filed with the SEC on March 12, 2004).

3.		Form of Registration Rights Agreement dated April 15, 1993, between the Issuer, Martin Bucksbaum, Matthew Bucksbaum and the other parties named therein (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2005 which was filed with the SEC on March 31, 2006).

4.		Amendment to Registration Rights Agreement dated February 1, 2000, among Issuer and certain other parties named therein (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2003 which was filed with the SEC on March 12, 2004).

5.		Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership dated April 1, 1998 (the “LP Agreement”) (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2005 which was filed with the SEC on March 31, 2006).

6.		First Amendment to the LP Agreement dated as of June 10, 1998 (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2002 which was filed with the SEC on March 14, 2003).

7.		Second Amendment to the LP Agreement dated as of June 29, 1998 (incorporated by reference to Issuer’s Annual Report on Form 10-K for the year ended December 31, 2002 which was filed with the SEC on March 14, 2003).

8.		Third Amendment to the LP Agreement dated as of February 15, 2002 (incorporated by reference to the Issuer’s Current Report on Form 8-K dated July 10, 2002 which was filed with the SEC on July 24, 2002).

9.		Amendment to the LP Agreement dated as of April 24, 2002 (incorporated by reference to the Issuer’s the Current Report on Form 8-K dated July 10, 2002 which was filed with the SEC on July 24, 2002).

10.		Fourth Amendment to the LP Agreement dated as of July 10, 2002 (incorporated by reference to the Issuer’s Current Report on Form 8-K dated July 10, 2002 which as filed with the SEC on July 24, 2002).

11.		Amendment to the LP Agreement dated as of November 27, 2002 (incorporated by reference to the Issuer’s the Annual Report on Form 10-K for the year ended December 31, 2002 which was filed with the SEC on March 14, 2003).

12.		Sixth Amendment to the LP Agreement and Exhibit A to the Amendment dated as of November 20, 2003 (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2003 which was filed with the SEC on March 12, 2004).


CUSIP No.		370021107	13D	Page		12		of		13



13.		Amendment to the LP Agreement and Exhibit A to the Amendment dated as of December 11, 2003 (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2003 which was filed with the SEC on March 12, 2004).

14.		Amendment to the LP Agreement dated March 5, 2004 (incorporated by reference to the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004 which was filed with the SEC on May 7, 2004).

15.		Amendment to the LP Agreement dated November 12, 2004 (incorporated by reference to the Issuer’s Current Report on Form 8-K/A dated November 12, 2004 which was filed with the SEC on November 18, 2004).

16.		Amendment to the LP Agreement dated September 30, 2006 (incorporated by reference to the Issuer’s Annual Report on Form 10-Q for the year ended December 31, 2007 which was filed with the SEC on March 1, 2007).

17.		Twelfth Amendment to the LP Agreement dated December 31, 2006 (incorporated by reference to the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2007 which was filed with the SEC on March 1, 2007).

18.		Amended and Restated Management Limited Partner Agreement dated as of August 20, 2007 by and among Stanley Richards, as Trustee of the Stanley Richards Revocable Trust and M.B. Capital Units L.L.C. (filed herewith).

19.		Second Amended and Restated Agreement of Partnership of M.B. Capital Partners I II entered into as of August 1, 2007 among the parties thereto (filed herewith).

20.		Limited Liability Company Agreement of M.B. Capital Units L.L.C. entered into as of August 2, 2007 among the parties thereto (filed herewith).

21.		Term Loan Agreement, entered into as of November 9, 2004, between Citigroup Global Markets, Inc. and M.B. Capital Partners III (filed herewith).

22.		First Amendment to Term Loan Agreement, entered into as of August 2, 2007, between Citigroup Global Markets, Inc. and M.B. Capital Partners III (filed herewith).

23.		Joint Filing Agreement dated as of August 21, 2007 among General Trust Company, M.B. Capital Partners III and M.B. Capital Units L.L.C. (filed herewith).


CUSIP No.		370021107	13D	Page		13		of		13

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: August 21, 2007


GENERAL TRUST COMPANY
By:	/s/ E. Michael Greaves

Name:	E. Michael Greaves

Title:	Vice President



M.B. CAPITAL PARTNERS III
By:	General Trust Company, Trustee of MBA Trust, a Partner

	By:	/s/ E. Michael Greaves

	Name:	E. Michael Greaves

	Title:	Vice President



M.B. CAPITAL UNITS LLC
By:	M.B. Capital Partners III,
	its sole member

	By:	General Trust Company, Trustee of MBA Trust, a Partner

		By:	/s/ E. Michael Greaves

		Name:	E. Michael Greaves

		Title:	Vice President

EX-99.18 2 c17957exv99w18.htm AMENDED AND RESTATED MANAGEMENT LIMITED PARTNER AGREEMENT exv99w18

EXHIBIT 18

AMENDED AND RESTATED

MANAGEMENT LIMITED PARTNER AGREEMENT

This Amended and Restated Management Limited Partner Agreement (this “Agreement”) is made and entered into this 20^th day of August, 2007 by and among Stanley Richards, as Trustee of the Stanley Richards Revocable Trust (together with its successors and assigns, the “Management Limited Partner”) and M.B. Capital Units L.L.C., a Delaware limited liability company (together with its successors and assigns, the “Bucksbaum Limited Partners” and, together with the Management Limited Partner, the “Limited Partners”).

W I T N E S S E T H:

WHEREAS, the Limited Partners are limited partners and own common units of limited partnership in GGP Limited Partnership, a Delaware limited partnership (such partnership, the “Partnership” and common units of limited partnership in the Partnership, “Units”), existing pursuant to that certain Second Amended and Restated Agreement of Limited Partnership dated as of April 1, 1998, as amended (the “Partnership Agreement”); and

WHEREAS, under the terms of that certain Rights Agreement dated July 27, 1993, as amended (the “Rights Agreement”), the Limited Partners, as limited partners of the Partnership, have been granted Conversion Rights and Sale Rights (each as defined in the Rights Agreement) pursuant to which the Limited Partners may convert all or a portion of their Units into shares of common stock of General Growth Properties, Inc. (the “General Partner”) and may sell all or a portion of the remainder of their Units; and

WHEREAS, the Limited Partners’ exercise of Conversion Rights and Sale Rights is subject to certain restrictions and limitations as set forth in the Rights Agreement including limitations as to the time and manner in which Conversion Rights and Sale Rights may be exercised; and

WHEREAS, the Limited Partners (or the prior owners of their Units) have set forth certain understandings and agreements with respect to the exercise of Conversion Rights and Sale Rights in that certain Management Limited Partner Agreement dated April 6, 1993 (the “Existing Management Limited Partner Agreement”); and

WHEREAS, the parties hereto desire to amend and restate the Existing Management Limited Partner Agreement as set forth herein.

NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto amend and restate the Existing Management Limited Partner Agreement to read in its entirety as follows:

1. Definitions. Unless otherwise defined herein to the contrary, or unless the context requires otherwise, all defined terms used herein shall have the same meaning as in the Rights Agreement or the Partnership Agreement.

2. Exercise Notices. The Management Limited Partner hereby agrees that, except as permitted in this Agreement, such Management Limited Partner shall not deliver to the General Partner a Conversion Component Exercise Notice or a Sale Component Exercise Notice or otherwise attempt to exercise Rights under the Rights Agreement.

3. Notice of Intent to Exercise. Prior to delivering a Conversion Component Exercise Notice or a Sale Component Exercise Notice to the General Partner under the Rights Agreement, the Bucksbaum Limited Partners shall deliver written notice (the “Intent Notice”) to the Management Limited Partner of the intent to exercise Rights, which Intent Notice shall

specify the names of the Bucksbaum Limited Partners desiring to exercise Rights, the number of Units which such Bucksbaum Limited Partners desire to tender and the date on which exercise of Rights shall occur (the “Specified Exercise Date”).

4. Voluntary Joinder. Upon receipt of an Intent Notice delivered pursuant to Paragraph 3 hereof, the Management Limited Partner may join in the exercise of Rights initiated by the Bucksbaum Limited Partners by delivering written notice (the “Joinder Notice”) to the Bucksbaum Limited Partners within twenty (20) days after receipt of the Intent Notice (the “Opt-In Period”), which Joinder Notice shall include the number of Units which such Management Limited Partner desires to convert or sell in connection with the exercise of Rights on the Specified Exercise Date. The Bucksbaum Limited Partners and the Management Limited Partner shall be entitled to exercise Conversion Rights and/or Sale Rights in proportion to their relative number of Units as of the Specified Exercise Date.

5. Mandatory Conversion. At such time as the Bucksbaum Limited Partners shall (or with the exercise of Rights will) no longer be limited partners of the Partnership, the Management Limited Partner shall be required to exercise Conversion Rights such that the Management Limited Partner will no longer be a limited partner of the Partnership.

6. Management Limited Partner’s Right to Put. The Management Limited Partner shall have the right to require, at his option, the Bucksbaum Limited Partners (pro rata in accordance with the number of Units owned by them or as they may otherwise agree) to purchase all (but not less than all) of the Management Limited Partner’s Units for cash by delivering written notice (the “Put Notice”) to the Bucksbaum Limited Partners not less than seventy-five (75) days prior to the date (“Closing Date”) on which the Management Limited Partner shall designate as the closing date in the Put Notice. On the Closing Date, (a) the

Bucksbaum Limited Partners shall purchase the Units of the Management Limited Partner for an amount equal to the product of the number of such Units and the average of the Closing Prices (adjusted as appropriate for intervening stock splits, stock dividends, reverse stock splits and the like) for the five consecutive Trading Days ending on the date the Put Notice is given, payable in cash and (b) the Management Limited Partner shall deliver to the Bucksbaum Limited Partners an Assignment of Partnership Units and such other instruments as shall be necessary or desirable to transfer the Units on the books of the Partnership, which such instruments shall contain customary representations by the Management Limited Partner that the Units are owned free and clear of all Liens.

7. Miscellaneous.

(a) Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their legal representatives, heirs, successors or assigns, except as expressly herein otherwise provided. No Limited Partner may transfer all or any part of its Units unless the transferee agrees to be bound by the terms of this Agreement.

(b) Notices. All notices hereunder shall be delivered in the manner specified in Section 13.1 of the Partnership Agreement.

(d) Entire Understanding. This Agreement constitutes the entire agreement among the parties with respect to the subject matter within.

(e) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.



BUCKSBAUM LIMITED PARTNER:				MANAGEMENT LIMITED PARTNER:

M.B. CAPITAL UNITS L.L.C., a Delaware limited liability company				STANLEY RICHARDS REVOCABLE TRUST

By:	M.B. CAPITAL PARTNERS III, a South Dakota general partnership

	By:	GENERAL TRUST COMPANY, not		By:	/s/ Stanley Richards

		individually but solely as Trustee of			Stanley Richards, not individually but
		Martin Investment Trust G, partner			solely as Trustee

		By:	/s/ E. Michael Greaves

		Name:	E. Michael Greaves

		Title:	Vice President

EX-99.19 3 c17957exv99w19.htm SECOND AMENDED AND RESTATED AGREEMENT OF PARTNERSHIP exv99w19

EXHIBIT 19

SECOND

AMENDED AND RESTATED

AGREEMENT OF PARTNERSHIP

M.B. CAPITAL PARTNERS III

SECOND

AMENDED AND RESTATED

AGREEMENT OF PARTNERSHIP

M.B. CAPITAL PARTNERS III

Table of Contents


	Page
ARTICLE I
1.1 Definitions		2
Act Entity
1.2 Exhibits, Etc.		8
ARTICLE II
2.1 Formation of Partnership		8
2.2 Name		8
2.3 Principal Place of Business		9
2.4 Purpose and Business of the Partnership		9
2.5 Term		9
2.6 Documents		9
ARTICLE III
3.1 Contributions of Partners		11
3.2 Withdrawal, Return of Capital; Interest		11
3.3 No Third Party Beneficiary		11
3.4 Priority		12
ARTICLE IV
4.1 Net Income and Net Loss		12
4.2 Special Allocations		12
4.3 Curative Allocations		14
4.4 Tax Allocations		14
4.5 Allocations Subsequent to Assignment		16
ARTICLE V
ARTICLE VI
6.1 Books and Records		16
6.2 Reports		17
6.3 Accounting Decisions		17
6.4 Tax Matters Partner		17
6.5 Tax Elections and Returns		18
6.6 Interim Accounting		19

- i -


	Page
ARTICLE VII
7.1 Management		19
7.2 Right of Public to Rely on Authority of the Partners		19
7.3 Reimbursement		20
7.4 Compensation of the Partners		20
7.5 Contracts with Affiliates		20
7.6 Waiver and Indemnification		20
7.7 Title Holder		22
ARTICLE VIII
8.1 General Restriction on Transfer		22
8.2 Further Restrictions on Transfer		22
8.3 New Partners		23
8.4 Dissolution of Partnership upon Transfer		24
ARTICLE IX
9.1 Dissolution		24
9.2 Assumption of Agreements		25
9.3 Accounting		25
9.4 Liquidating Trustee		25
9.5 Liquidating Distribution.		27
9.6 Distributions in Accordance with Capital Accounts		27
9.7 Distributions in Kind		28
ARTICLE X
10.1 Trustee Liability		29
10.2 Status of Successor Trustee as Partner		29
10.3 Termination of a Trust		29
ARTICLE XI
11.1 Amendments		30
11.2 Further Assurances		30
11.3 Notices		30
11.4 Governing Law		31
11.5 Captions		31
11.6 Pronouns and Headings		31
11.7 Article, Section and Exhibit References		31
11.8 Successors and Assigns		31
11.9 Extension not a Waiver		31
11.10 Severability		32
11.11 Entire Agreement		32
11.12 Waiver of Partition		32
11.13 Counterparts		32

- ii -

SECOND

AMENDED AND RESTATED

AGREEMENT OF PARTNERSHIP

M.B. CAPITAL PARTNERS III

THIS SECOND AMENDED AND RESTATED AGREEMENT OF PARTNERSHIP (the “Agreement”) is made and entered into as of the first day of August, 2007, by and among the undersigned.

WITNESSETH:

WHEREAS, a general partnership known as M.B. Capital Partners III (the “Partnership”) exists pursuant to that certain Agreement of Partnership dated August 1, 1997, as amended (the “Existing Partnership Agreement”), and the Uniform Partnership Act of the State of South Dakota.

WHEREAS, the parties hereto, being all of the current partners of the Partnership desire to amend and restate the Existing Partnership Agreement to permit the creation of separate divisions of the Partnership and otherwise to reflect their understandings regarding the Partnership.

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

ARTICLE I

DEFINED TERMS

1.1 Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below:

“Accountants” shall mean the firm or firms of independent certified public accountants selected by a Majority in Interest of the Partners on behalf of the Partnership to audit the books and records of the Partnership and/or to prepare statements and reports in connection therewith.

“Act” shall mean the Uniform Partnership Act as enacted in the State and as the same may be amended from time to time.

“Affected Gain” shall have the meaning set forth in Section 4.4(b).

“Affiliate” shall mean, as to any Partner (or as to any other Person the affiliates of whom are relevant for purposes of any of the provisions of this Agreement), any Person controlled by, under common control with or controlling, directly or indirectly through one or more intermediaries, such Partner or such other Person.

“Agreement” shall mean this Agreement of Partnership, as originally executed and as amended, modified, supplemented or restated from time to time, as the context requires.

“Bankruptcy” shall mean, with respect to any Partner, (a) the making of an assignment for the benefit of creditors; or (b) the filing of any proceeds in bankruptcy or reorganization; or (c) the failure to vacate, discharge or dismiss within sixty (60) days from the date of its initiation either (i) the filing of a proceeding in bankruptcy against it or (ii) the appointment of a receiver or trustee for all or any part of such Partner’s assets or property.

“Capital Account(s)” shall mean, with respect to any Partner, the separate “book” account which the Partnership shall establish and maintain for such Partner in accordance with

Section 704(b) of the Code and Section 1.704-1(b)(2)(iv) of the Regulations and such other provisions of Section 1.704-1(b) of the Regulations that must be complied with in order for the Capital Accounts to be determined in accordance with the provisions of said Regulations. In furtherance of the foregoing, the Capital Accounts shall be maintained in compliance with Section 1.704-1(b)(2)(iv) of the Regulations, and the provisions hereof shall be interpreted and applied in a manner consistent therewith. A Capital Account shall also be maintained for each Partner with respect to each Division in which it is a Division Participant in accordance with the principles set forth in this Agreement as if the assets, liabilities and other items allocated to such Division constituted the only assets, liabilities and other items of the Partnership.

“Capital Contribution” shall mean, with respect to any Partner, the amount of money and the fair market value of any property other than money contributed to the Partnership with respect to the Units held by such Partner.

“Cash Flow” shall mean, with respect to any Fiscal Year or other applicable fiscal period, the excess, if any, of (a) all cash receipts of the Partnership from all sources for such period, including without limitation receipts from operations, contributions of capital by the Partners, deposits and all other Partnership cash sources, and all Partnership cash reserves on hand at the beginning of such period, over (b) all cash expenses and capital expenditures of the Partnership for such period, all payments of principal and interest on account of Partnership indebtedness and such reasonable cash reserves as a Majority in Interest of the Partners deems necessary for any Partnership needs, including, without limitation, anticipated payments for maturing obligations, for operations and for capital improvements. Cash Flow shall be determined separately for each Division.

“Code” shall mean the Internal Revenue Code of 1986, as amended, or any replacement or successor code thereto.

“Defaulting Partner” shall have the meaning set forth in Section 9.1.

“Division” shall have the meaning set forth in Section 2.7.

“Division A” means the Division of the Partnership to which are allocated the assets, liabilities, revenues, expenses, gains, losses, capital and other items attributable to all assets set forth on Schedule A attached hereto.

“Division A Partners” means all Partners set forth on the signature pages hereof under the heading “Division A Partners,” their duly admitted successors and assigns and any Person who, at the time of reference thereto, becomes a Partner and who holds an interest in Division A.

“Division A Percentages” shall mean, with respect to each Division A Partner, the fraction, expressed as a percentage, the numerator of which is the number of Division A Units held by such Division A Partner and the denominator of which is the number of Division A Units held by all Division A Partners.

“Division B Percentages” shall mean, with respect to each Division B Partner, the fraction, expressed as a percentage, the numerator of which is the number of Division B Units held by such Division B Partner and the denominator of which is the number of Division B Units held by all Division B Partners.

“Division A Units” shall mean the Units held by the Division A Partners, as set forth on attached Exhibit A, as may be amended from time to time.

“Division B” means the Division of the Partnership to which are allocated the assets, liabilities, revenues, expenses, gains, losses, capital and other items attributable to the assets set forth on Schedule B attached hereto.

“Division B Partners” means all Partners set forth on the signature pages hereof under the heading “Division B Partners,” their duly admitted successors and assigns and any Person who, at the time of reference thereto, becomes a Partner and who holds an interest in Division B.

“Division B Units” shall mean the Units held by the Division B Partners, as set forth on attached Exhibit A, as may be amended from time to time.

“Division Participant” shall mean, with respect to Division A, the Division A Partners and with respect to Division B, the Division B Partners.

“Entity” shall mean any general partnership, limited partnership, corporation, limited liability company, joint venture, trust, business trust, cooperative or association.

“Financial Statements” shall mean financial statements (balance sheet, statement of income, statement of partners’ equity and statement of cash flows) prepared in accordance with generally accepted accounting principles.

“Fiscal Year” shall mean the calendar year or such other fiscal year as a Majority in Interest of the Partners may determine in its discretion from time to time.

“Liquidating Trustee” shall mean such Person as is selected by a Majority in Interest of the Non-Defaulting Partner(s), which Person may include an Affiliate of the Partners. The Liquidating Trustee shall be empowered to give and receive notices, reports and payments in connection with the dissolution, liquidation and/or winding-up of the Partnership, and shall hold and exercise such other rights and powers as are necessary or required to permit all parties to deal with the Liquidating Trustee in connection with the dissolution, liquidation, and/or winding-up of the Partnership.

“Majority in Interest” shall mean the Partner or Partners holding a majority of the Units then held by all of the Partners or a certain specified group of the Partners, as the case may be

and Majority in Interest of a Division shall be the Division Participants of such Division holding a majority of the Units of such Division.

“Minimum Gain Attributable to Partner Nonrecourse Debt” shall mean “partner nonrecourse debt minimum gain” as determined in accordance with Regulation Section 1.704-2(i)(2).

“Net Income or Net Loss” shall mean, for each Fiscal Year or other applicable period, an amount equal to the Partnership’s taxable income or loss for such year or period, determined by the Accountants in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a) of the Code shall be included in taxable income or loss), with the following adjustments:

(a) any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss shall be added to such taxable income or loss;

(b) any expenditures of the Partnership described in Section 705(a)(2)(B) of the Code or treated as Code Section 705(a)(2)(B) expenditures under Section 704(b) of the Code or Section 1.704-1(b)(2)(iv)(i) of the Regulations and not otherwise taken into account in computing Net Income or Net Loss shall be subtracted from such taxable income or loss;

(c) gain or loss resulting from any disposition of Partnership property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the book value of such property (as the same may be restated or

otherwise adjusted pursuant to Regulation Section 1.704-1(b)(2)(iv)) rather than its adjusted tax basis;

(d) in lieu of the depreciation, depletion, amortization and other cost recovery deductions taken into account in computing taxable income or loss, there shall be taken into account depreciation as determined under Regulation Section 1.704-1(b)(2)(iv)(g)(3); and

(e) in the event the book value of any Partnership asset is restated and/or adjusted pursuant the aforesaid Regulation Sections, the amount of such adjustment shall be taken into account as additional Net Income or Net Loss, as the case may be.

“Non-Defaulting Partner” shall have the meaning set forth in Section 9.1.

“Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-2(b)(1) and (c) of the Regulations.

“Nonrecourse Liabilities” shall have the meaning set forth in Section 1.704-2(b)(3) of the Regulations.

“Partner Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-2(i)(2) of the Regulations.

“Partners” shall mean the Persons whose names are set forth on Schedule A, their duly admitted successors or assigns or any Person who is a partner at the time of reference thereto.

“Partnership” shall have the meaning set forth in the preamble.

“Partnership Minimum Gain” shall have the meaning set forth in Sections 1.704-2(b)(2) and (d)(1) of the Regulations.

“Person” shall mean any natural person or Entity.

“Regulations” means the proposed, temporary and final regulations promulgated by the Treasury Department pursuant to the Code, as amended from time to time.

“Section 704(c) Items” shall have the meaning set forth in Section 4.4(c).

“State” shall mean the State of South Dakota.

“Tax Items” shall have the meaning set forth in Section 4.4(a).

“Tax Matters Partner” shall have the meaning set forth in Section 6.4.

“Units” shall mean, with respect to any Partner, the partnership units owned by such Partner in the Partnership, including without limitation the rights and obligations relating to such units as provided herein and, to the extent not provided herein, the Act. The number of Units held by each Partner is set forth opposite such Partner’s name on attached Exhibit A.

1.2 Exhibits, Etc. References to “Exhibit” or to “Schedule” are, unless otherwise specified, to one of the Exhibits or Schedules attached to this Agreement, and references to an “Article” or a “Section” are, unless otherwise specified, to one of the Articles or Sections of this Agreement. Each Exhibit and Schedule attached hereto and referred to herein is hereby incorporated herein by such reference.

ARTICLE II

FORMATION OF PARTNERSHIP

2.1 Continuation of Partnership. The Partners do hereby continue the Partnership as a general partnership under the Act and upon the terms and subject to the conditions hereof. Except as provided herein, the rights and obligations of the Partners shall be as set forth in the Act.

2.2 Name. The business of the Partnership shall be conducted under the name MB Capital Partners III or such other name or names designated in writing by a Majority in Interest

of the Partners. All transactions of the Partnership, to the extent permitted by applicable law, shall be carried on and completed in the name of the Partnership or such other name or names as shall be determined by a Majority in Interest of the Partners in writing from time to time.

2.3 Principal Place of Business. The location of the Partnership’s principal place of business shall be at 300 North Dakota Avenue, Suite 202, Sioux Falls, South Dakota 57104.

2.4 Purpose and Business of the Partnership. The purpose of the Partnership shall be to acquire, hold, own, sell, transfer, encumber, exchange, and otherwise dispose of or deal with real and personal property of any type or nature and to engage in one or more other businesses as are permissible under the Act.

2.5 Term. The Partnership has heretofore commenced and shall continue its business through and until its termination on December 31, 2050, unless sooner terminated as hereinafter provided.

2.6 Documents. The Partners shall execute all such certificates, notices, statements or other instruments, including without limitation, fictitious or assumed name certificates as shall constitute compliance with all requirements as may be necessary to enable the Partnership to conduct its business or to own its properties under the Partnership name or to preserve the character of the Partnership under applicable law.

2.7 Divisions

(a) All of the assets, liabilities, revenues, income, expenses, gains, losses, capital, and other items attributable to the Partnership shall belong to and be recorded on the books of the Partnership. However, each of such Partnership items shall be allocated to separate divisions (“Divisions”) pursuant to the provisions of this Agreement, and the relative rights of each such Division and each Division Participant therein shall be set forth herein. Even if not expressly provided herein, the provisions of this Agreement shall be applied separately to each Division as though the property, obligations and other items allocated to such Division constituted the only assets and items of the Partnership. The allocation of all such Partnership items among the Divisions shall be made in the

reasonable discretion of a Majority in Interest of the Partners on a basis which they deem to approximately reflect either the particular Division of the Partnership to which such item is attributable or the reasonably proportionate relationship of such item to each Division. Without limiting the generality of the foregoing, a Majority in Interest of the Partners, in their reasonable discretion, shall designate receipts, expenditures and liabilities as being receipts, expenditures and liabilities of the Division to which they relate and may allocate among one or more Divisions any indirect costs, expenses and liabilities which a Majority in Interest of the Partners reasonably determines should be so allocated to accurately reflect the relationship of such items to such Divisions.

Except for obligations pursuant to this Agreement, the debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to any Division shall be enforceable against the assets of such Division only and not against the assets of the Partnership generally or any other Division thereof, and none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Partnership generally or any other Division shall be enforceable against the assets of such Division.

(b) Initially, two Divisions of the Partnership, Division A and Division B, have been designated and created as provided herein. A Majority in Interest of the Partners may create any one or more new Divisions of the Partnership which in their sole discretion such Majority in Interest deem to be appropriate, and admit Persons as Partners and Division Participants therein, without the need for (i) the consent of any other existing Partner or Division Participant or (ii) the amendment of this Agreement to reflect such Division(s); provided, however, that a Majority in Interest of the Partners shall notify each affected Partner of the formation of each new Division. Without limitation, a Majority in Interest in their reasonable discretion may determine, with respect to any Division created pursuant to this Section 2.7(b), and may cause this Agreement to be amended to reflect, each aspect of such Division, including, without limitation, the following: (A) the manner in which the Division Participants shall share in the Net Income, Net Loss, Cash Flow and other items of income, gain, loss and deduction of the Partnership attributable to such Division, including the manner in which such Division Participants shall share in the assets of such Division upon the liquidation thereof; (B) the amount, time and manner of payment of the capital contributions to be contributed by the Division Participants to such Division; and (C) such other items as a Majority in Interest of the Partners shall deem advisable or necessary to reflect the relationship among the Division Participants. Nothing in this Section 2.7 shall in itself cause any Partner or Division Participant to be obligated to make any additional capital contribution to the Partnership beyond the capital contributions made or committed to the Partnership and/or made or committed to any one or more Divisions in which such Partner is a Division Participant.

ARTICLE III

PARTNERSHIP CAPITAL

3.1 Contributions of Partners. The Partners have contributed capital to the Partnership as set forth on the Partnership’s books and records. By execution and delivery of this Agreement, the Partners hereby acknowledge and agree that the relative values of their capital interests in the Partnership are as reflected by the Capital Accounts and the number of Units owned by them and the allocation thereof to the separate Divisions. Except as otherwise expressly provided herein or required by applicable law, the Partners shall not be required to contribute any additional capital to the Partnership.

3.2 Withdrawal, Return of Capital; Interest. No Partner shall be entitled to withdraw any part of its Capital Contribution(s), or shall be entitled to any distributions from the Partnership, except as specifically provided herein. No Partner shall be entitled to interest on any Capital Contribution to the Partnership.

3.3 No Third Party Beneficiary. No creditor or other third party having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and assigns. None of the rights or obligations of the Partners herein set forth to make Capital Contributions to the Partnership shall be deemed an asset of the Partnership for any purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or other obligation of the Partnership or of any of the Partners.

3.4 Priority. Except as otherwise expressly provided herein, there shall be no priority among the Partners as to the return of capital contributions or withdrawals from or distributions of the Partnership.

ARTICLE IV

ALLOCATION OF PARTNERSHIP ITEMS

4.1 Net Income and Net Loss. After giving effect to the allocations set forth in Sections 4.2 and 4.3, Net Income or Net Loss, as the case may be, for any Fiscal Year or other applicable period shall be allocated separately for each Division among the Division Participants in proportion to the number of Units owned by such Division Participants.

4.2 Special Allocations. Notwithstanding any provisions of Section 4.1 to the contrary, the following special allocations shall be made in the following order:

(a) Minimum Gain Chargeback (Nonrecourse Liabilities). Notwithstanding anything to the contrary contained in this Article IV, if there is a net decrease in Partnership Minimum Gain for any Fiscal Year (except as a result of conversion or refinancing of Partnership Nonrecourse Liabilities, certain capital contributions or revaluation of the Partnership property, all as further outlined in subsections (d)(2), (f)(2), or (f)(3) of Regulations Section 1.704-2), each Partner shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to that Partner’s share of the net decrease in the Partnership Minimum Gain. The items to be so allocated shall be determined in accordance with Regulations Section 1.702-2(f). This section is intended to comply with the minimum gain chargeback requirement in said section of the Regulations and shall be interpreted consistently therewith. Allocations pursuant to this section shall be made in

proportion to the respective amounts required to be allocated to each Partner pursuant thereto.

(b) Minimum Gain Attributable to Partner Nonrecourse Debt. After giving effect to Section 4.2(a), if there is a net decrease in Minimum Gain Attributable To Partner Nonrecourse Debt (other than due to the conversion, refinancing, or other change in the debt instrument attributable to such Partnership Nonrecourse Liabilities causing it to become partially or wholly nonrecourse, certain capital contributions or revaluations of the Partnership property as further outlined in Regulations Section 1.704-2(i)(4)), each Partner shall be specially allocated items of Partnership income and gain for such Fiscal Year (and, if necessary, subsequent years) in an amount equal to that Partner’s share of the net decrease in such Minimum Gain Attributable To Partner Nonrecourse Debt. The items to be so allocated shall be determined in accordance with Regulations Section 1.702-2(i). This section is intended to comply with the minimum gain chargeback requirement in said section of the Regulation and shall be interpreted consistently therewith. Allocations pursuant to this section shall be made in proportion to the respective amount required to be allocated to each Partner pursuant thereto.

(c) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or other applicable period shall be allocated to the Partners in accordance with the number of Units owned by them.

(d) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any Fiscal Year or other period shall be specially allocated to the Partner that bears the economic risk of loss for the debt (i.e., the partner nonrecourse debt) in respect of which

such Partner Nonrecourse Deductions are attributable (as determined under Regulation Sections 1.704-2(b)(4) and (i)(1)).

(e) Section 754 Basis Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Sections 732, 734 or 743 of the Code is required, to be taken into account in determining Capital Accounts in accordance with Regulations Section 1.704-1(b)(2)(iv)(m), the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations.

4.3 Curative Allocations. The allocations set forth in Sections 4.2(a), 4.2(b), 4.2(d) and 4.2(e) (the “Regulatory Allocations”) are intended to comply with certain requirements of Regulations Section 1.704-1(b). Notwithstanding any provisions of Sections 4.1 and 4.2 to the contrary (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Partners so that, to the extent possible, the cumulative net amount of allocations of Partnership items under Sections 4.1, 4.2 and 4.3 shall be equal to the net amount that would have been allocated had the Regulatory Allocations not occurred. This Section 4.3 is intended to minimize to the extent possible and to the extent necessary any economic distortions which may result from application of the Regulatory Allocations and shall be interpreted in a manner consistent therewith.

4.4 Tax Allocations.

(a) Generally. Subject to Sections 4.4(b) and 4.4(c), tax items of income, gain, loss, deduction and credit (collectively, “Tax Items”) shall be allocated among the Partners on the same basis as the respective book items.

(b) Sections 1245/1250 Recapture. If any portion of gain from the sale of property is treated as gain which is ordinary income by virtue of the application of Code Sections 1245 or 1250 (“Affected Gain”), then (A) such Affected Gain shall be allocated among the Partners in the same proportion that the depreciation and amortization deductions giving rise to the Affected Gain were allocated and (B) other Tax Items of gain of the same character that would have been recognized, but for the application of Code Sections 1245 and/or 1250, shall be allocated away from those Partners who are allocated Affected Gain pursuant to Clause (A) so that, to the extent possible, the other Partners are allocated the same amount, and type, of capital gain that would have been allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes hereof, in order to determine the proportionate allocations of depreciation and amortization deductions for each Fiscal Year or other applicable period, such deductions shall be deemed allocated on the same basis as Net Income and Net Loss for such respective period.

(c) Allocations Respecting Section 704(c) and Revaluations. Notwithstanding Section 4.4(b), Tax Items with respect to Partnership property that are subject to Code Section 704(c) and/or Regulation Section 1.704-3 (collectively “Section 704(c) Tax Items”) shall, to the extent so required, be allocated in accordance with said Code section and/or Regulation Section 1.704-3, as the case may be. The Partners are

authorized to specially allocate Tax Items consistent with the principles of Regulation Section 1.704-3.

4.5 Allocations Subsequent to Assignment. To the extent permitted by the Code, Net Income or Net Loss and other items attributable to a Unit acquired by reason of an assignment from a Partner shall be allocated or adjusted between the assignor and the assignee based upon either (a) the length of time in any fiscal period of the Partnership during which the assigned Unit was owned by each of them, determined with reference to the effective date of the assignment, or (b) an interim closing of the Partnership’s books (at assignor’s sole expense), such manner of allocation or adjustment to be determined by the assignor, with the consent of all remaining Partners, which consent shall not be unreasonably withheld.

ARTICLE V

PARTNERSHIP DISTRIBUTIONS

The Partners shall cause the Partnership to distribute Cash Flow of each Division to the Division Participants quarterly at such times and in such amounts as are determined by a Majority in Interest of the Partners provided all such distributions shall be made in accordance with each Division Participant’s Division Percentage.

ARTICLE VI

ACCOUNTING MATTERS

6.1 Books and Records. The Partners shall maintain or cause to be maintained at the offices of the Partnership full, true, complete and correct books of account of the Partnership, in accordance with generally accepted accounting principles applied on a consistent basis. The books of account shall contain particulars of all monies, goods or effects belonging to or owing to or by the Partnership, or paid, received, sold or purchased in the course of the Partnership’s

business, and all of such other transactions, matters and things relating to the business of the Partnership as are usually entered in books of accounts kept by persons engaged in a business of a like kind and character. In addition, the Partnership shall keep all records as required to be kept pursuant to the Act. Each Partner shall, at reasonable times, have free access thereto for the purpose of inspecting or copying same.

6.2 Reports. The Partners shall prepare, or cause to be prepared, and furnish to each Person who was a Partner during a Fiscal Year as soon as practicable after the close of such Fiscal Year, but in no event later than 90 days after the close of the Fiscal Year, Financial Statements of the Partnership, consistent with the books of account of the Partnership, together with the reports thereon and all supplementary schedules and information prepared by the Accountants.

6.3 Accounting Decisions. All decisions as to accounting principles shall be made by a Majority in Interest of the Partners.

6.4 Tax Matters Partner. Martin Investment Trust G is hereby designated as the Tax Matters Partner within the meaning of Section 6231(a)(7) of the Code for the Partnership; provided, however, (i) in exercising its authority as Tax Matters Partner it shall be limited by the provisions of this Agreement affecting tax aspects of the Partnership; (ii) the Tax Matters Partner shall consult in good faith with the other Partners regarding the filing of a Code Section 6227(b) administrative adjustment request with respect to the Partnership before filing such request, it being understood, however, that the provisions hereof shall not be construed to limit the ability of any Partner, to file an administrative adjustment request on its own behalf pursuant to Section 6227(a) of the Code; (iii) the Tax Matters Partner shall consult in good faith with the other Partners regarding the filing of a petition for judicial review of an administrative adjustment

request under Section 6228 of the Code, or a petition for judicial review of a final partnership administrative judgment under Section 6226 of the Code relating to the Partnership before filing such petition; (iv) the Tax Matters Partner shall give prompt notice to the other Partner of the receipt of any written notice that the Internal Revenue Service or any state or local taxing authority intends to examine Partnership income tax returns for any year, receipt of written notice of the beginning of an administrative proceeding at the Partnership level relating to the Partnership under Section 6223 of the Code, receipt of written notice of the final Partnership administrative adjustment relating to the Partnership pursuant to Section 6223 of the Code, and receipt of any request from the Internal Revenue Service for waiver of any applicable statute of limitations with respect to the filing of any tax return by the Partnership; and (v) the Tax Matters Partner shall promptly notify the other Partners if the Tax Matters Partner does not intend to file for judicial review with respect to the Partnership.

6.5 Tax Elections and Returns. The Tax Matters Partner shall, from time to time, make such tax elections on behalf of the Partnership as it deems necessary or desirable in its sole discretion to carry out the business of the Partnership or the purposes of this Agreement, including but not limited to elections under Section 754 of the Code. The Tax Matters Partner shall cause the Accountants to prepare and file federal, state and local tax returns for the Partnership on a timely basis, and shall furnish copies thereof to the Partners with required partnership schedules showing allocations of book and tax items. The Tax Matters Partner shall cause the Accountants to submit to the Partners on or before the first day of the fourth month following the end of each Fiscal Year for approval all federal and state income tax returns of the Partnership. If any Partner shall disapprove the tax returns of the Partnership, as submitted by

the Accountants, such disapproving Partner may indicate to the Accountants the suggested revisions to the tax returns.

6.6 Interim Accounting. A Majority in Interest of the Partners may cause the books of account of all Partnership to be closed on an interim basis, when a Majority in Interest of the Partners deems such closing necessary or appropriate under the circumstances, including but not limited to a transfer of a Unit causing a termination of the Partnership for tax purposes.

ARTICLE VII

RIGHTS AND DUTIES OF THE PARTNERS

7.1 Management. Except as otherwise provided herein, any decisions concerning the business or property of the Partnership shall be made by a Majority in Interest of the Partners or Majority in Interest of the Division Participants with respect to matters affecting only a particular Division. The Partnership shall have, and is hereby granted, full and complete power, authority and discretion to take such actions to carry out the purposes for which the Partnership was organized. Except as otherwise provided herein, to the extent the duties of the Partners require expenditures of funds to be paid to third parties, the Partners shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the Partners, in their capacity as such, to expend individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.

7.2 Right of Public to Rely on Authority of the Partners. Nothing herein contained shall impose any obligations on any Person or firm doing business with the Partnership to inquire as to whether or not a Partner has exceeded its authority in executing any contract,

lease, mortgage, deed or other instrument on behalf of the Partnership, and any such third person shall be fully protected in relying upon such authority.

7.3 Reimbursement. Upon proper written substantiation and verification, any Partner shall be entitled to receive out of Partnership funds available therefor reimbursement of all amounts reasonably expended by such Partner out of its own funds in payment of properly incurred Partnership obligations. Reimbursements pursuant to this section shall not be duplicative of payments to such Partner under any other provision of this Agreement or other agreement.

7.4 Compensation of the Partners. The Partners shall not be entitled to any compensation for services rendered to the Partnership solely in their capacity as Partners.

7.5 Contracts with Affiliates. The Partnership may retain, on behalf of the Partnership, the services of a Partner or a firm to which a Partner is an Affiliate to render such services as a Majority in Interest of the Partners shall deem advisable for the operation and management of the Partnership on such terms and for such compensation as a Majority in Interest of the Partners shall determine. The validity of any transaction, agreement or payment involving the Partnership and an Affiliate, otherwise permitted by the terms of this Agreement, shall not be affected by reason of the relationship between the Partnership and the Partners or such Affiliate.

7.6 Waiver and Indemnification.

(a) Neither the Partners nor any Person acting on their behalf, pursuant hereto, shall be liable, responsible or accountable in damages or otherwise to the Partnership or to any Partner for any acts or omissions performed or omitted to be performed by them within the scope of the authority conferred upon the Partners by this Agreement and the

Act, provided that the Partner’s or such other Person’s conduct or omission to act was taken in good faith and in the belief that such conduct or omission was in the best interests of the Partnership and, provided further, that the Partner or such other Person shall not be guilty of fraud, misconduct or negligence. The Partnership shall, and hereby does, indemnify and hold harmless the Partners and their Affiliates and any individual acting on their behalf from any loss, damage, claims or liability, including, but not limited to, reasonable attorneys’ fees and expenses, incurred by them by reason of any act performed by them in accordance with the standards set forth above or in enforcing the provisions of this indemnity; provided, however, no Partner shall have any personal liability with respect to the foregoing indemnification, any such indemnification to be satisfied solely out of the assets of the Partnership.

(b) Any Person entitled to indemnification under this Agreement shall be entitled to receive, upon application therefor, advances to cover the costs of defending any proceeding against such Person; provided, however, that such advances shall be repaid to the Partnership, without interest, if such Person is found by a court of competent jurisdiction upon entry of a final judgment not to be entitled to such indemnification. All rights of the indemnitee hereunder shall survive the dissolution of the Partnership; provided, however, that a claim for indemnification under this Agreement must be made by or on behalf of the Person seeking indemnification prior to the time the Partnership is liquidated hereunder. The indemnification rights contained in this Agreement shall be cumulative of, and in addition to, any and all rights, remedies and recourse to which the person seeking indemnification shall be entitled, whether at law or at equity.

Indemnification pursuant to this Agreement shall be made solely and entirely from the assets for the Partnership and no Partner shall be liable therefor.

7.7 Title Holder. To the extent allowable under applicable law, the Partnership may hold title to all or any part of its properties in the name of an individual, corporation, partnership, trust or otherwise, the beneficial interest in which shall at all times be vested in the Partnership, and may agree that any such title holders be vested with all or any part of the powers which might otherwise reside in the Partnership. Any such title holders shall perform any and all of their respective functions to the extent and upon such terms and conditions as may be determined from time to time by a Majority in Interest of the Partners in accordance with the terms hereof.

ARTICLE VIII

TRANSFER OF UNITS;

WITHDRAWAL FROM THE PARTNERSHIP

8.1 General Restriction on Transfer. Except to the extent permitted by this Article VIII or as otherwise provided herein, no Partner may sell, assign, pledge, encumber or otherwise dispose of (collectively, “transfer”) all or any portion of its Units, whether or not the transferee shall thereby, or as a result thereof, become or seek to become a Partner, without the express prior written consent of a Majority in Interest of the other Partners. Any Unit validly transferred in accordance with the provisions of this Article VIII shall remain subject to all limitations and restrictions contained in this Agreement and any such transferee must so agree in writing as provided in Section 8.3.

8.2 Further Restrictions on Transfer. In addition to any other restrictions on transfer herein contained, in no event may any transfer or assignment of any Unit be made (a) to any Person who lacks the legal right, power or capacity to own a Unit; (b) to any Person whose

status as a Partner would have an adverse effect for income tax purposes on the Partnership or any of the continuing Partners (including, without limitation, a constructive termination of the Partnership pursuant to Code Section 708(b)(1)(B)); (c) in violation of any provision of any mortgage or trust deed (or the note or bond secured thereby) constituting a lien against any Partnership property, or other instrument, document or agreement to which the Partnership is a party or otherwise bound; (d) in violation of applicable law; or (e) of any component portion of a Unit, separate and apart from all other components of said Unit.

8.3 New Partners. Any Person, not then a Partner, to whom a Partnership Interest shall be transferred in accordance with the provisions hereof shall not, notwithstanding such transfer, become a Partner hereunder unless such Person shall, in a written instrument reasonably satisfactory to all other Partners, expressly assume and agree to be bound by all of the terms and provisions of this Agreement. All reasonable costs and expenses incurred by the Partnership in connection with any transfer, and, if applicable, the admission of a Person as a Partner hereunder, shall be paid by the transferring Person. If a Unit is transferred in accordance with the provisions hereof and the transferee refuses to execute an agreement to be bound by all of the terms and provisions of this Agreement, such transferee shall be deemed a mere assignee of profits only without any right, power or authority of a Partner hereunder and shall bear losses in the same manner as its predecessor in interest; the transferor of such interest shall thereafter be considered to have no further rights or interest in the Partnership with respect to the interest transferred, but shall nonetheless be subject to its obligations under this Agreement with respect to such interest. Upon compliance with the provisions hereof, and upon execution and delivery of the aforesaid written instrument by the transferee, the transferee shall be admitted to the Partnership as a Partner, the transferor shall withdraw from the Partnership to the extent of its

transferred Units, and, subject to Section 8.2, the transferor shall be relieved of any further liabilities or obligations as a Partner to the extent of its transferred Units from and after the effective date of such transfer, but shall continue to be liable for any matters arising prior to the effective date of such transfer.

8.4 Dissolution of Partnership upon Transfer. In the event of a transfer of a Unit pursuant to this Article VIII, such transfer shall not cause a dissolution of the Partnership under applicable law.

ARTICLE IX

DISSOLUTION AND TERMINATION

9.1 Dissolution. The Partnership shall continue in effect until the expiration of its term, unless sooner dissolved upon the occurrence of any one or more of the following events:

(a) the termination, dissolution, insolvency, Bankruptcy or death of any Partner other than in connection with a valid transfer of any Unit or as provided elsewhere herein;

(b) the affirmative written vote of a Majority in Interest of the Partners to dissolve the Partnership; and

Dissolution of the Partnership caused by a Partner in contravention of this Agreement (a “Defaulting Partner”) shall be a violation of this Agreement and the other Partner (the “Non-Defaulting Partner”) shall have: all rights and remedies provided under applicable law and, in addition thereto, the right to any and all damages at law or in equity resulting from such violation of this Agreement. To the extent permissible by law, whether or not the business of the

Partnership is continued by the Non-Defaulting Partner, such Non-Defaulting Partner shall be permitted to withhold the Defaulting Partner’s share of Partnership property the Defaulting Partner would otherwise be entitled to under this Article IX upon the winding-up and termination of the Partnership as collateral security for the obligations such Defaulting Partner may have to the Non-Defaulting Partner in connection with the operation and dissolution of the Partnership.

9.2 Assumption of Agreements. No vote by the Partners to dissolve the Partnership pursuant to Section 9.1(b) hereof shall be effective unless, prior to or concurrently with such vote, there shall have been established procedures for the assumption of all of the Partnership’s obligations.

9.3 Accounting. Upon the dissolution of the Partnership, a proper accounting (which shall be certified) shall be made of the assets and liabilities of the Partnership and the Capital Account of each Partner as of the date of dissolution and of the items of Net Income and Net Loss of the Partnership from the date of the last previous accounting to the date of dissolution. Audited financial statements presenting such accounting shall be prepared.

9.4 Liquidating Trustee.

(a) Winding-Up. Upon the dissolution of the Partnership, the affairs of the Partnership shall be wound up and terminated and the Partners shall continue to share Net Income, Net Loss, Cash Flow and other items of the Partnership during the winding-up period in accordance with the provisions of Articles IV and V hereof. The winding-up of the affairs of the Partnership and the distribution of its assets shall be conducted exclusively by the Liquidating Trustee, who is hereby authorized to do all acts authorized by law for these purposes. The Liquidating Trustee, in carrying out such winding up and distribution, shall have full power and authority to sell, assign, transfer and encumber all

or any of the Partnership assets; provided, however, the Liquidating Trustee shall not sell any assets unless (a) the Liquidating Trustee shall have in good faith solicited bids from unrelated third parties and obtained independent appraisals before making any sale and (b) such transactions shall be made by the Liquidating Trustee solely on an “arm’s length” basis and at the best price and on the best terms and conditions that the Liquidating Trustee believes are reasonably available. In the event of the dissolution of the Partnership by the affirmative vote of the Partners as provided by this Agreement, any distribution of rights of the Partnership shall be subject to the conditions set forth in Section 9.2 hereof.

(b) Termination. Upon the completion of the winding up of the Partnership and the distribution of all Partnership assets, the Partnership shall terminate and the Liquidating Trustee shall have the authority to execute and record any and all other documents required to effectuate the termination of the Partnership.

(c) Indemnification. The Liquidating Trustee shall be indemnified and held harmless by the Partnership from and against any and all claims, liabilities, costs, damages and causes of action of any nature whatsoever arising out of or incidental to the Liquidating Trustee’s taking of or failure to take any action authorized under, or within the scope of, this Agreement; provided, however, that the Liquidating Trustee shall not be entitled to indemnification for (a) matters entirely unrelated to the Liquidating Trustee’s actions under the provisions of this Agreement, or (b) its proven gross negligence or proven willful misconduct.

9.5 Liquidating Distribution. In the event of the dissolution of the Partnership for any reason, the assets of each Division shall be liquidated for distribution in the following rank and order:

(a) first, to the payment and discharge of all such Division’s debts and liabilities in the order of priority as provided by law;

(b) second, to the establishment of any necessary reserves to provide for contingent liabilities of such Division, if any; and

(c) the balance, if any, to the Division Participants of such Division in accordance with their respective positive Capital Accounts in such Division, after giving effect to all contributions, distributions and allocations for all periods with respect to such Division, including the period during which such distributions occur.

9.6 Distributions in Accordance with Capital Accounts. In the event the Partnership is “liquidated” within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g) (the “Liquidation Event”):

(a) distributions shall be in accordance with their respective positive Capital Accounts with respect to each Division in compliance with Regulation Section 1.704-1(b)(2)(ii)(b)(2), such distributions to be made on or before a date (the “Final Liquidation Date”) no later than the later to occur of (i) the last day of the taxable year of the Partnership in which the Liquidation Event occurs and (ii) ninety days after the date of such Liquidation Event; and

(b) if any Partner has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which the Liquidation Event occurs), such Partner shall contribute to the capital of the Partnership money in an amount necessary to restore such deficit balance to zero in compliance with Regulation Section 1.704-1(b)(2)(ii)(b) (3).

If the Liquidating Trustee, as the case may be, in its discretion, determines that the distributions will not be timely made as provided in foregoing paragraph (a), such person may distribute all of the assets and liabilities of the Partnership in trust, with the Liquidating Trustee, or such other person as may be selected by a Majority in Interest of the Non-Defaulting Partners, as trustee; the purpose of the trust is to allow the Partnership to comply with the timing requirements contained in foregoing paragraph (a). The trustee of said trust shall distribute the former Partnership assets (however constituted, enhanced or otherwise) as promptly as he deems proper and in the same manner as directed in this Section 9.6 (without regard to this sentence or the preceding two sentences) and otherwise as required hereunder. The trust shall be terminated as soon as possible after the trust property is distributed to the beneficiaries thereof.

9.7 Distributions in Kind. Partnership property distributed in kind shall be transferred and conveyed to the distributees as tenants in common subject to any liabilities attached thereto so as to vest in them undivided interests in the whole of such property in proportion to their respective rights to share in the proceeds of the sale of such property in accordance with this Article IX.

ARTICLE X

TRUST PARTNERS

10.1 Trustee Liability. When this Agreement is executed by the trustee of any trust, such execution is by the trustee, not individually but solely as trustee in the exercise of and under the power and authority conferred upon and invested in such trustee, and it is expressly understood and agreed that nothing herein contained shall be construed as creating any liability on any such trustee personally to pay any amounts required to be paid hereunder, or to perform any covenant, either express or implied, contained herein, all such liability, if any, being expressly waived by the parties hereto by their execution hereof. Any liability of any Partner which is a trust to the Partnership or to any third person shall be only that of such trust to the full extent of its trust estate and shall not be a personal liability of any trustee, grantor or beneficiary thereof.

10.2 Status of Successor Trustee as Partner. Any successor trustee or trustees of any trust which shall be a Partner herein shall be entitled to exercise the same rights and privileges and be subject to the same duties and obligations as his predecessor trustee. As used in this Agreement, the term “trustee” shall include any or all such successor trustees.

10.3 Termination of a Trust. The termination of any trust which is a Partner shall not terminate the Partnership. Upon the allocation or distribution of all or any portion of the Units of a trust which is a Partner pursuant to the exercise of any power of appointment, or otherwise, to a beneficiary of such trust or to another person or persons or to another trust or trusts, whether or not such distribution shall terminate such distributing trust, each distributee shall only succeed to the rights of an assignee and shall not become a Partner unless and until the provisions of Article VIII hereof are satisfied.

ARTICLE XI

MISCELLANEOUS

11.1 Amendments. This Agreement may be amended, modified or changed in any respect with respect to a particular Division only upon the written consent of all Division Participants.

11.2 Further Assurances. Each Partner agrees to execute, acknowledge, deliver, file, record and publish such further certificates, amendments to certificates, instruments and documents, and do such other acts and things as may be required by law, or as may be required to carry out the intent and purposes of this Agreement.

11.3 Notices. All notices, demands, consents, approvals, requests, offers or other communications which any of the parties to this Agreement may desire or shall be required to be given hereunder shall be in writing and shall be given (a) by registered or certified mail, return receipt requested, (b) by personal delivery, (c) delivery via reputable private air freight service, the cost and expense of such delivery to be borne by the sending party, or (d) by electronic communication (telex or facsimile transmission). All notices shall be addressed to the recipient at the address contained on the signature pages hereto. Any Partner may designate another address (or change its address) for notices hereunder by delivery of a written notice to all other Partners in accordance with the provisions of this section. Any notice sent in compliance with the above provisions shall be deemed delivered and received, except for electronic communications, on the third business day next succeeding the day on which it was sent, or, if sooner, on the actual date received by the other party, and, in the case of electronic communications, only on the date the sending party receives acknowledgement of receipt of such notice by the other party.

11.4 Governing Law. This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the State.

11.5 Captions. All articles and section headings or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

11.6 Pronouns and Headings. As used herein, all pronouns shall include the masculine, feminine, neuter, singular and plural thereof wherever the context and facts require such construction. The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof.

11.7 Article, Section and Exhibit References. All references in this Agreement to particular sections, articles, schedules or exhibits shall, unless expressly otherwise provided or unless the context otherwise requires, be deemed to refer to the specific sections or articles in this Agreement and the schedules or exhibits attached to this Agreement, which schedules and exhibits by such references are incorporated herein.

11.8 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective executors, administrators, legal representatives, heirs, successors and assigns, and shall inure to the benefit of the parties hereto, and, except as otherwise herein expressly provided, their respective executors, administrators, legal representatives, successors and assigns.

11.9 Extension not a Waiver. No delay or omission in the exercise of any power, remedy or right herein provided or otherwise available to a party or to the Partnership shall impair or affect the right of such Partner or the Partnership thereafter to exercise the same. Any extension of time or other indulgences granted to a Partner hereunder shall not otherwise alter or

affect any power, remedy or right of any other Partner or of the Partnership, or of the obligations of the Partner to whom such extension or indulgence is granted.

11.10 Severability. If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to such Person or circumstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law.

11.11 Entire Agreement. This Agreement, and the schedules and exhibits hereto, contain the entire understanding and agreement of the parties hereto relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein, are terminated.

11.12 Waiver of Partition. Each Partner hereby irrevocably waives during the term of the Partnership any right that it or he may have to maintain any action for partition with respect to any Partnership property.

11.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one agreement, but no counterpart shall be binding unless an identical counterpart shall have been executed and delivered by each of the other parties hereto.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

DIVISION A PARTNERS:

APPLETON TRUST

FALLBROOK ANN TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

FALLBROOK JOHN TRUST

MARTIN INVESTMENT TRUST G

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MATTHEW INVESTMENT TRUST A

MATTHEW INVESTMENT TRUST B

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MATTHEW INVESTMENT TRUST G

MATTHEW INVESTMENT TRUST H

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MATTHEW FAMILY TRUST G

MBA TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MBB TRUST

MBC TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MADELYN FAMILY TRUST

LOUIS FAMILY TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

MBS TRUST

JB TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

ABF TRUST

MHBA TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

GENERAL TRUST COMPANY,
Trustee

By:
Its:

E. Michael Greaves

Vice President

By:
Its:

E. Michael Greaves

Vice President

LB TRUST

By:

GENERAL TRUST COMPANY,
Trustee

By:

E. Michael Greaves

Its:

Vice President

DIVISION B PARTNERS:

MATTHEW BUCKSBAUM REVOCABLE TRUST


By:		/s/ Matthew Bucksbaum Matthew Bucksbaum, Trustee

110 North Wacker Drive, Suite 330
Chicago, Illinois 60606

GENERAL GROWTH COMPANIES, INC., a
Delaware corporation


By:		/s/ E. Michael Greaves Name: E. Michael Greaves
		Title: Vice President and Secretary

		110 North Wacker Drive, Suite 330
		Chicago, Illinois 60606

SCHEDULE A

DIVISION A ASSETS

The assets and liabilities of Division A shall consist of:

97.375% of all the assets of the Partnership as of August 1, 2007 and all liabilities attributable to such assets.

100% of all assets acquired by the Partnership from and after August 1, 2007 and all liabilities attributable to such assets.

SCHEDULE B

DIVISION B ASSETS

The assets of Division B shall consist solely of 2.625% of all assets and liabilities of the Partnership as of August 1, 2007.

EXHIBIT A
Partners/Units


Partners	Division A Units		Division B Units
A. Division A Partners
Appleton Trust		5,614,080.35720		—
Fallbrook John Trust		806,516.22795		—
Fallbrook Ann Trust		806,516.22795		—
Martin Investment Trust G		17,107,226.87560		—
Matthew Investment Trust A		3,090,956.49040		—
Matthew Investment Trust B		3,087,046.91940		—
Matthew Investment Trust C		6,172,954.66880		—
Matthew Investment Trust H		6,172,954.66880		—
Matthew Family Trust G		1,646,094.77650		—
MBA Trust		1,034,541.68190		—
MBB Trust		1,030,632.11000		—
MBC Trust		1,029,585.06750		—
Louis Family Trust		1,650,002.00000		—
Madelyn Family Trust		1,650,002.00000		—
MBS Trust		4,521,000		—
JB Trust		429,000		—
ABF Trust		429,000		—
MHBA Trust		99,000		—
LB Trust		99,000		—
				—
B. Division B Partners
General Growth Companies, Inc.		—		24,957,81850
Matthew Bucksbaum Revocable Trust		—		1,497,512.00000

Total: 57,998,579.89		56,476,110.07		1,522,469.82

EX-99.20 4 c17957exv99w20.htm LIMITED LIABILITY COMPANY AGREEMENT exv99w20

EXHIBIT 20

LIMITED LIABILITY COMPANY AGREEMENT

M.B. CAPITAL UNITS L.L.C.

TABLE OF CONTENTS


	Page
ARTICLE I DEFINED TERMS; EXHIBITS, ETC		1
1.1 Definitions		1
1.2 References		2
ARTICLE II FORMATION		2
2.1 Formation of Company		2
2.2 Name		2
2.3 Purpose; Powers		2
2.4 Principal Office		3
2.5 Registered Agent and Registered Office		3
2.6 Tax Status of Company		3
ARTICLE III CAPITAL CONTRIBUTIONS		3
3.1 Capital Contributions		3
3.2 Withdrawal; Return of Capital; Interest		3
3.3 Waiver of Appraisal Rights		3
3.4 No Obligation to Make Additional Capital Contributions		3
ARTICLE IV DISTRIBUTIONS; ALLOCATIONS; etc		3
4.1 Distributions		3
4.2 Allocations		3
4.3 Negative Capital Accounts		3
ARTICLE V ACCOUNTING AND ADMINISTRATIVE MATTERS		4
5.1 Books and Records		4
5.2 Tax Reporting		4
5.3 Reimbursement		4
ARTICLE VI MANAGEMENT OF THE COMPANY: ETC		4
6.1 Management		4
6.2 Conflicts		4
6.3 Liability of the Members		5
6.4 Indemnity		5
6.5 Continuation		5

-i-

TABLE OF CONTENTS
(Continued)


	Page
ARTICLE VII TRANSFER OF MEMBERSHIP INTERESTS; ISSUANCE OF ADDITIONAL MEMBERSHIP INTERESTS		6
7.1 Transfer of Membership Interests		6
7.2 Additional Membership Interests		6
ARTICLE VIII DISSOLUTION AND TERMINATION		6
8.1 Dissolution		6
8.2 Accounting		6
8.3 Winding-Up		6
8.4 Liquidating Distributions		7
ARTICLE IX MISCELLANEOUS		7
9.1 Amendment		7
9.2 Further Assurances		7
9.3 Notices		7
9.4 Waiver of Notice		7
9.5 Governing Law		8
9.6 Captions		8
9.7 Pronouns		8
9.8 Successors and Assigns		8
9.9 Severability		8
9.10 Entire Agreement		8
9.11 Trustee Provisions		8

-ii-

LIMITED LIABILITY COMPANY AGREEMENT

M.B. CAPITAL UNITS L.L.C.

LIMITED LIABILITY COMPANY AGREEMENT dated August 2, 2007 among M.B. CAPITAL UNITS L.L.C., a Delaware limited liability company (the “Company”), M.B. CAPITAL PARTNERS III, a South Dakota general partnership (“M.B. III”), as the sole Member of the Company, and any other Persons who may be admitted to the Company and become Members.

R E C I T A L S:

WHEREAS, the Company has been formed under the Act and the parties hereto desire to set forth their understandings regarding the Company.

NOW, THEREFORE, the parties hereto hereby agree as follows:

ARTICLE I

DEFINED TERMS; EXHIBITS, ETC.

1.1 Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below:

“Act” means the Delaware Limited Liability Company Act, as the same may be amended from time to time.

“Affiliate” has the meaning set forth in the Securities Act of 1933, as amended.

“Agreement” means this Limited Liability Company Agreement, as originally executed and as duly amended, modified, supplemented or restated in accordance with the provisions of this Agreement from time to time, as the context requires.

“Capital Contribution” means, with respect to each Member, the amount of money or fair market value of property contributed to the Company by such Member from time to time.

“Entity” means any corporation, general partnership, limited partnership, limited liability company, joint venture, trust, business trust, cooperative, association or other entity.

“Fiscal Year” shall mean the fiscal year of the Company.

“Formation Certificate” means the Certificate of Formation of the Company as filed with the Secretary of State of Delaware, as the same may be amended or restated from time to time.

“Majority Members” means those Members owning a majority of the Membership Percentages.

“M.B. III” has the meaning set forth in the recitals.

“Member(s)” initially means M.B. III and thereafter shall include Persons who are admitted to the Company as provided herein and who become signatories hereto. Exhibit A shall be amended to reflect the admission of any new Members.

“Membership Interest” means a Member’s entire interest in the Company, which shall entitle the Member to, among other things, (i) an interest in the distributions, net proceeds of liquidation and other items of the Company, as set forth herein and (ii) participate in the management of the Company as set forth herein. A Membership Interest is personal property and a Member shall have no interest in the specific assets or property of the Company.

“Membership Percentage” means, with respect to each Member, such Member’s percentage ownership interest in the Company as set forth on Exhibit A attached hereto, as the same may be amended from time to time.

“Person” means any natural person or Entity.

“Transfer” means assign, sell, pledge, encumber, give or otherwise transfer, dispose of or alienate, or grant an option or contractual agreement to do any of the foregoing, but shall not include any transfer to a legal representative or successor trustee.

1.2 References. References to an “Exhibit” or “Schedule” are, unless otherwise specified, to one of the exhibits or schedules attached to this Agreement, and references to an “Article” or a “Section” are, unless otherwise specified, to one of the articles or sections of this Agreement. Each Exhibit attached hereto and referred to herein is hereby incorporated herein by such reference.

ARTICLE II

FORMATION

2.1 Formation of Company. Upon the filing of the Formation Certificate with the Secretary of State of the State of Delaware on August 2, 2007, the Company was formed as a Delaware limited liability company. Except as provided herein or in the Formation Certificate, the rights and obligations of the Members are as provided under the Act.

2.2 Name. The name of the Company is “M.B. CAPITAL UNITS L.L.C.”

2.3 Purpose; Powers. The purpose of the Company is to engage in any lawful business or activity permitted by the Act. The Company shall have all powers granted to limited liability companies under the Act.

2.4 Principal Office. The location of the Company’s principal office is 300 North Dakota Avenue, Suite 202, Sioux Falls, SD 57104 or such other place as the Majority Members may determine from time to time.

2.5 Registered Agent and Registered Office. The Company shall have a registered agent and a registered office in the State of Delaware as required by the Act. The name and address of the initial registered agent and registered office of the Company are listed in the Formation Certificate. The registered agent and registered office may be changed from time to time by the Majority Members.

2.6 Tax Status of Company. So long as the Company has one Member for Federal income tax purposes, the Company shall be disregarded for Federal and state income tax purposes.

ARTICLE III

CAPITAL CONTRIBUTIONS

3.1 Capital Contributions. The Members have contributed to the capital of the Company the cash and/or property described opposite their names on attached Exhibit A.

3.2 Withdrawal; Return of Capital; Interest. Except as specifically provided herein, no Member shall be entitled to any distributions from the Company or to withdraw any part of such Member’s Capital Contribution or, if and when such withdrawal of capital is permitted, to demand distribution of property other than money. No Member shall be entitled to interest on its Capital Contribution.

3.3 Waiver of Appraisal Rights. Each Member hereby waives any appraisal rights pursuant to the Act or otherwise.

3.4 No Obligation to Make Additional Capital Contributions. No Member shall be obligated to make any additional Capital Contributions to the Company.

ARTICLE IV

DISTRIBUTIONS; ALLOCATIONS; ETC.

4.1 Distributions. Subject to the Act and Article VI hereof, the timing and amount of distributions shall be determined by the Majority Members. Any distributions shall be made pro rata among the Members in accordance with their Membership Percentages.

4.2 Allocations. If the Company becomes a partnership for tax purposes, the profits and losses of the Company shall be allocated pro rata among the Members in accordance with their Membership Percentages.

4.3 Negative Capital Accounts. No Member shall have an obligation to the Company to restore to zero any negative balance in its capital account, if any.

ARTICLE V

ACCOUNTING AND ADMINISTRATIVE MATTERS

5.1 Books and Records. The Company shall maintain true, complete and correct books of account of the Company. The books of account shall contain particulars of all monies, goods or effects belonging to or owing to or by the Company, or paid, received, sold or purchased by the Company, and all of such other transactions, matters and things relating to the business of the Company as are usually entered in books of account kept by Persons engaged in a business of a like kind and character. In addition, the Company shall keep all records required to be kept pursuant to the Act. A Member shall, upon prior written notice and during normal business hours, have access to the information described in the Act, for the purpose of inspecting or, at the expense of such Member, copying the same.

5.2 Tax Reporting. If the Company becomes a partnership for tax purposes, the Company shall prepare, or cause to be prepared, and shall furnish to each Person who was a Member during a Fiscal Year, as soon as practicable after the close of such Fiscal Year, such forms, if any, as shall be necessary to advise all Members relative to their investment in the Company for federal, state and local income tax reporting purposes.

5.3 Reimbursement. The Company shall reimburse the Members for reasonable out-of-pocket costs incurred in connection with, or allocable to, the performance of their duties under this Agreement.

ARTICLE VI
MANAGEMENT OF THE COMPANY: ETC.

6.1 Management. The management and control of the Company shall be vested exclusively in the Members and the Members shall have the exclusive power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein. Except as otherwise expressly provided herein, the act of the Majority Members shall constitute the act of the Members hereunder or pursuant hereto.

6.2 Conflicts.

(a) Each of the Members shall devote such time to the Company’s business as he, she or it shall deem necessary in his, her or its sole and absolute discretion in connection with his, her or its duties and responsibilities hereunder.

(b) Each Member recognizes that the Members and their Affiliates have or may hereafter have other business interests, activities and investments, some of which may now or hereafter be in conflict or competition with the business of the Company, and each Member agrees that each Member and its respective Affiliates are entitled to carry on such other business interests, activities and investments without any accountability therefor to the Company or any other Member. Except to the extent provided in Section 6.2(a), no Member or Affiliate of any Member shall be obligated to devote all or any particular part of his, her or its time and efforts to the Company or its business affairs. Each Member and each Affiliate of each Member may engage in or possess an interest in

any other business or venture of any kind, independently or with others, and any Member, and each Affiliate of any Member, may engage in any activities, whether or not competitive with the Company, without thereby being in breach of this Agreement or of any duty owed to the Company or the Members, and without any obligation to offer any interest in such activities to the Company or to any Member or to any Affiliate of any Member. Neither the Company nor any Member, nor any Affiliate of any Member, shall have any right by virtue of this Agreement or by virtue of the relationship among the Members, in or to such other activities, or to the income or profits derived therefrom, and the pursuit of such activities, even if competitive with the business of the Company, shall not be deemed wrongful or improper or a breach of any of the fiduciary duties owed by one Member to the Company or another Member.

(c) The Majority Members may cause the Company to enter into a transaction or arrangement with any Member or an Affiliate thereof as long as such transaction or arrangement is entered into upon terms that are no less favorable to the Company than the Company would obtain in a comparable arm’s-length transaction

6.3 Liability of the Members. No Member shall be liable or accountable to the Company or to any of the Members in damages or otherwise for any error of judgment, for any mistake of fact or of law, or for any other act or thing which he, she or it may do or refrain from doing or suffer to be done in connection with the management of the business and affairs of the Company, except in the case of his, her or its bad faith, willful misconduct or gross negligence.

6.4 Indemnity. The Company shall indemnify, defend and hold the Members and each officer, director, stockholder, partner, member, employee, agent, Affiliate, subsidiary or assignee of the Members (the “Indemnitees”) free and harmless from and against any expenses, losses, claims, costs, damages and liabilities, including without limitation, judgments, fines, amounts paid in settlement and expenses (including, without limitation, reasonable attorneys’ and paralegal fees and expenses, court costs, investigation costs and litigation costs) incurred by any Indemnitee in any civil, criminal or investigative proceeding in which it is involved or threatened to be involved by reason of any Member being a Member of the Company provided that such Member acted within what it reasonably believed to be the scope of its authority and its conduct did not constitute willful misconduct, gross negligence or bad faith. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding, as authorized by the Majority Members in the specific case, upon receipt of an undertaking by the Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company. No Member shall have personal liability for indemnification or advancement of expenses pursuant to this Section 6.4 (other than to repay such advancement as provided herein).

6.5 Continuation. The provisions of this Article (other than Section 6.1) shall continue as to a Person who has ceased to be a Member as to claims arising out of activities related to his, her or its prior capacity and shall inure to the benefit of his, her its heirs, representatives, successors and obligors. The provisions of this Article (other than Section 6.1) also shall survive the liquidation, dissolution and termination of the Company and the termination of this Agreement and shall be binding on the Company’s successors and assigns.

ARTICLE VII

TRANSFER OF MEMBERSHIP INTERESTS;
ISSUANCE OF ADDITIONAL MEMBERSHIP INTERESTS

7.1 Transfer of Membership Interests. No Member may Transfer its Membership Interest, and no transferee of a Membership Interest shall be admitted as a substitute Member, without the approval of the Majority Members. Any Person, not then a Member, to whom a Membership Interest shall be Transferred in accordance with the provisions of this Article IX shall agree in writing to be subject to the terms hereof. All reasonable costs and expenses incurred by the Company in connection with any Transfer, and, if applicable, the admission of a Person as a substitute Member, shall be paid by the transferor. If any Membership Interest is transferred in accordance with the provisions hereof and the transferee is not admitted as a substitute Member, (a) such transferee shall be deemed a mere assignee of profits only without any right, power or authority of a Member hereunder and shall bear losses in the same manner as its predecessor in interest and (b) the transferor of such interest shall thereafter be considered to have no further rights or interest in the Company with respect to the interest transferred, but shall nonetheless be subject to its obligations under this Agreement with respect to such interest. Upon admission of a transferee as a substitute Member, the transferor shall be relieved of any corresponding obligations arising under this Agreement, to the extent of its Transferred Membership Interest.

7.2 Additional Membership Interests. Any Person may be admitted as a Member of the Company upon the approval of the Majority Members and upon agreeing in writing to be subject to the terms hereof. The terms upon which additional Membership Interests shall be issued shall be determined by the Majority Members.

ARTICLE VIII

DISSOLUTION AND TERMINATION

8.1 Dissolution. The Company shall continue in perpetuity until dissolved upon the first to occur of the following:

(a) the affirmative vote of the Majority Members to dissolve the Company; or

(b) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.

8.2 Accounting. Upon the dissolution of the Company, a proper accounting shall be made of the assets and liabilities of the Company.

8.3 Winding-Up.

(a) Upon the dissolution of the Company, the affairs of the Company shall be wound up and terminated and the Members shall continue to share distributions and other items

of the Company during the winding-up period in accordance with the provisions of Article IV hereof. The winding-up of the affairs of the Company and the distribution of its assets shall be conducted in accordance with Article VI.

(b) Upon the completion of the winding up of the Company and the distribution of all Company assets, the Company shall terminate and the Majority Members shall have the authority to execute and record any and all other documents required to effectuate the termination of the Company.

8.4 Liquidating Distributions. In the event of the dissolution of the Company for any reason, the assets of the Company shall be liquidated for distribution in the following rank and order:

(a) first, to the payment and discharge of all the debts and liabilities in the order of priority as provided by applicable law;

(b) second, to the establishment of any necessary reserves to provide for contingent liabilities, if any; and

(c) third, to the Members in proportion to their Membership Percentages, treating any distribution of property as a sale thereof at fair market value.

ARTICLE IX

MISCELLANEOUS

9.1 Amendment. This Agreement may be modified or amended at any time by the written approval of all Members.

9.2 Further Assurances. Each Member agrees to execute, acknowledge, deliver, file, record and publish such further certificates, amendments to certificates, instruments and documents, and do such other acts and things as may be required by law, or as may be required to carry out the intent and purposes of this Agreement.

9.3 Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given when deposited in the United States mail, first class postage prepaid, addressed to a Member at his, her or its address as it appears in the records of the Company or when delivered personally (including delivery by messenger, overnight courier service or via facsimile) to the Member at such address.

9.4 Waiver of Notice. Whenever any notice is required to be given under the provisions of the Act or this Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

9.5 Governing Law. This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law principles thereof.

9.6 Captions. All articles and section headings or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

9.7 Pronouns. As used herein, all pronouns shall include the masculine, feminine, neuter, singular and plural thereof wherever the context and facts require such construction.

9.8 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective executors, administrators, legal representatives, heirs, successors and assigns, and shall inure to the benefit of the parties hereto, and, except as otherwise herein expressly provided, their respective executors, administrators, legal representatives, heirs, successors and assigns.

9.9 Severability. If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to any other party or circumstances shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law.

9.10 Entire Agreement. This Agreement, including the Exhibits and Schedules hereto, contains the entire understanding and agreement of the parties hereto relating to the subject matter and supersedes all prior agreements relative hereto which are not contained herein.

9.11 Trustee Provisions.

(a) Trustee Liability. When this Agreement is executed by the trustee of any trust, such execution is by the trustee, not individually but solely as trustee in the exercise of and under the power and authority conferred upon and invested in such trustee, and it is expressly understood and agreed that nothing herein contained shall be construed as creating any liability on any such trustee personally to pay any amounts required to be paid hereunder, or to perform any covenant, either express or implied, contained herein, all such liability, if any, being expressly waived by the parties hereto by their execution hereof. Any liability of any Member which is a trust to the Company or a Member shall be only that of such trust to the full extent of its trust estate and shall not be a personal liability of any trustee, grantor or beneficiary thereof.

(b) Status of Successor Trustee as Member. Any successor trustee or trustees of any trust which shall be a Member herein shall be entitled to exercise the same rights and privileges and be subject to the same duties and obligations as his predecessor trustee. As used in this Agreement, the term “trustee” shall include any or all such successor trustees.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

THE MEMBER:

M.B. CAPITAL PARTNERS III, a South Dakota general partnership

By:

MBA Trust, partner

By:

General Trust Company, Trustee

By:

/s/ E. Michael Greaves

Its:

Vice President

THE COMPANY:

M.B. CAPITAL UNITS L.L.C., Delaware limited liability company

By:

M.B. Capital Partners III, a South Dakota general partnership, member

By:

MBA Trust, partner

By:

General Trust Company, Trustee

By:

/s/ E. Michael Greaves

Its:

Vice President

EXHIBIT A TO

LIMITED LIABILITY COMPANY AGREEMENT

OF M.B. CAPITAL UNITS L.L.C.


	INITIAL CAPITAL		MEMBERSHIP
MEMBER	CONTRIBUTION		PERCENTAGE
M.B. Capital Partners III	$	1,000		100.00	%

EX-99.21 5 c17957exv99w21.htm TERM LOAN AGREEMENT exv99w21

EXHIBIT 21

TERM LOAN AGREEMENT

This Term Loan Agreement (the “Agreement”), dated as of November 9, 2004 (the “Effective Date”), is made between Citigroup Global Markets Inc. (“CGMI), a New York corporation whose principal place of business is located at 388 Greenwich Street, New York, NY 10013, and M.B. Capital Partners III (the “Borrower”), a partnership organized under South Dakota law whose principal place of business is located at 300 North Dakota avenue, Suite 202, Sioux Falls, South Dakota 57104, to set forth the terms and conditions that will govern one or more extensions of credit (each, an “Advance”) by CGMI to the Borrower.

1.) Commitment to Extend Credit

(a) Subject to the terms and conditions of this Agreement, and provided that no event has occurred and is continuing that would constitute an “event of default” under Section 7 of this Agreement, CGMI agrees to make one or more Advances to the Borrower in an aggregate principal amount that may not exceed at any time five hundred million dollars ($500,000,000). (CGMI’s agreement to make Advances is referred to in this Agreement as the “Commitment”, and the $500,000,000 cap is referred to as the “Commitment Amount”). The Commitment will terminate on the Final Maturity Date (as such term is defined in Section 3(a) of this Agreement). The Borrower acknowledges and agrees that CGMI will not make any Advance that, notwithstanding CGMI’s agreement to lend the Borrower an amount up to the Commitment Amount, would result in a violation of Federal Reserve Board Regulation “T”. The loanable value of each security comprising the Collateral is indicated in Exhibit “B” to this Agreement. (The loanable value of cash is equal to 100%.) For purposes of this Agreement, “Market Value” with respect to publicly traded stock that comprises the Collateral means the last reported sale price of each share of such stock on the principal securities exchange for each stock on the previous business day, and “business day” means any day on which such exchange is open for regular-way trading.

(b) The Borrower will apply one or more of the Advances to finance the exercise of warrants (“Warrants”) issued pursuant to a registered offering (the “Rights Offering”) with the U.S. Securities and Exchange Commission and the purchase of shares of common stock (“Stock”) of General Growth Properties, Inc. (“GGP”) issuable upon exercise of such Warrants.

(c) The Borrower agrees to open a securities account (“Account”) at CGMI, which shall be titled “M.B. Capital Partners III, f.b.o. Citigroup Global Markets Inc. as Secured Lender.” For Advances up to the aggregate amount of $400,000,000, to the extent any portion of an Advance is not cash collateralized, the Borrower agrees to deposit into the Account, as of the date of such Advance, Stock, Investment Grade Bonds (as defined below) or other securities reasonably acceptable to CGMI with an aggregate Market Value equal to the lesser of: (i) an aggregate loanable amount equal to at least two hundred percent (200%) of that portion of the Advance that is not cash collateralized or (ii) eight hundred million dollars ($800,000,000). The shares will be registered in the

Borrower’s name and/or in CGMI’s “street name” and/or in the name of a pledgor with respect to shares pledged or hypothecated to the Borrower in a manner acceptable to CGMI. No Advances will be made to the Borrower until (i) such deposit is made into the Account, or (ii) such deposit is made concurrently with such Advance in a manner satisfactory to CGMI.

(d) The Borrower may obtain an Advance by: (i) requesting CGMI to wire transfer Federal funds in the amount of the Advance to a bank account in the Borrower’s name or any other party designated by the Borrower to CGMI in writing, (ii) requesting CGMI to issue a check payable to the Borrower or other recipient designated by the Borrower to CGMI in writing in the amount of the Advance, or (iii) by any other method agreed upon by CGMI and the Borrower. Each request for an Advance will specify the date (which must be a business day) of the borrowing and the amount of the Advance. Such request must be made no later than 3:00 pm New York time on the borrowing date.

(e) CGMI may, in its reasonable discretion, obtain reports from, and with the Borrower’s consent provide information to, affiliates of CGMI concerning the Borrower’s credit standing and relevant credit due diligence-related matters. CGMI may ask credit-reporting agencies for credit reports of the Borrower’s credit history. Upon the Borrower’s request, CGMI will inform the Borrower of the name and address of the credit-reporting agency or agencies that furnish such credit reports to CGMI and will provide copies of all such reports to the Borrower. Subsequent credit reports may be requested or utilized in connection with any renewal or extension of the Commitment. CGMI and each applicable affiliate of CGMI shall be subject to the confidentiality provisions of Section 15 with respect to the information it obtains, provides or receives pursuant to this Section 1(e).

(f) The Borrower agrees to provide CGMI with prompt written notice of any change in the Borrower’s address set forth in the introductory paragraph of this Agreement.

(g) Prior to receiving any Advances under this Agreement, the Borrower shall deliver to CGMI a certificate from GGP in substantially the form contained as Exhibit “A” to this Agreement (the “GGP Certificate”).

(h) CGMI agrees not to charge the Borrower a fee for making or continuing the Commitment.

2.) Payment of Interest

The Borrower agrees to pay interest to CGMI quarterly in arrears no later than five (5) business days following the end of each quarterly period (ie. January 31, April 30, July 31 and October 31), commencing with the quarter ending January 31, 2005, until the Loan Amount (as defined in Section 3(a) of this Agreement) is paid in full. Such interest, for each quarterly period, will be computed at the rate per annum equal to the average of the daily one month London Interbank Offered Rate (“LIBOR”) as reported on Bloomberg for each day of the interest cycle, plus fifty (50) basis points, calculated from the 21^st day of each calendar month to the 20^th day of the following

calendar month. Interest will accrue on the principal amount outstanding of each Advance from and including the date of the Advance. Interest will be calculated on the basis of a three hundred sixty (360) day year for the actual days elapsed. In the event any interest payment is not made within five (5) business days following the date due, the amount of interest due for such calendar quarter shall be automatically added to the aggregate principal amount of Advances then outstanding, and upon such addition interest will accrue on such amount, as adjusted for the addition of the interest amount payable, until the Loan Amount has been repaid in full, whether before or after the termination of this Agreement. In no event may the total interest charged under this Agreement exceed the maximum interest rate permitted by law. In the event any excess interest is collected by CGMI, the excess amount will be refunded or credited to the Borrower.

3.) Repayment of Advances

(a) The Borrower agrees to repay all Advances outstanding, including accrued and unpaid interest and in the case of an event of default hereunder, any reasonable, out-of-pocket costs of collection and reasonable, out-of-pocket attorney’s fees incurred in connection with CGMI’s collection efforts during the existence of the event of default (collectively, the “Loan Amount”) in one lump sum on the fifth anniversary of the Effective Date (“Final Maturity Date”), subject to any prepayments made pursuant to clause (b) below.

(b) The Borrower may pre-pay the Loan Amount, without penalty at any time upon one business clay’s written notice to CGMI. A prepayment may be made in whole or in part in amounts equal to or greater than $500,000. Prepayments shall be applied first against principal and second to the next scheduled payment of accrued interest, if any.

(c) Any payment made pursuant to Section 3(a) or 3(b) will be absolute and without reduction, counterclaim or any right of set-off or recoupment.

(d) CGMI may terminate the Commitment without penalty, and without incurring any liability to the Borrower, in the event any of the following events occur:

	(i)		an event of default under Section 7 shall have occurred and be continuing, including, but not limited to, the existence of a Shortfall as described in clause (iii) of such Section 7;

	(ii)		the merger agreement (“Merger Agreement”), dated as of August 19, 2004, by and among The Rouse Company, (“Rouse”), GGP and Red Acquisition, LLC, is not approved by the shareholders of Rouse; or

	(iii)		the Borrower fails to deliver to CGMI the GGP Certificate in substantially the form contained in Exhibit “A” to this Agreement.

4.) Collateral

(a) As continuing security for the repayment of the Loan Amount, the Borrower hereby grants, assigns, pledges and conveys as collateral security to CGMI a first priority lien and security interest in: (i) all shares of Stock and other securities on deposit in the Account, (ii) any cash now or hereafter on deposit in the Account, (iii) all securities issued or issuable in respect of the shares of Stock on deposit in the Account as a result of any share split, reorganization, merger or similar event, (iv) all property substituted by the Borrower for other property held as Collateral in accordance with this Agreement, and (v) subject to the provisions below, all dividends, interest, distributions and proceeds of the property described in clauses (i) – (iv) above. The property described in clauses (i) –(v) is referred to in this Agreement as the “Collateral”. Unless an “event of default” as defined in Section 7 has occurred and is continuing under this Agreement, and CGMI shall have notified the Borrower in writing that CGMI is then entitled to payment of the Loan Amount as secured party hereunder, the Borrower shall be entitled to receive and retain for its own use any cash in the Account, including cash distributions, interest, and cash dividends paid with respect to the Stock, subject to the restrictions described in Section 4(c). CGMI agrees to use the Collateral only for the purposes specifically described in this Agreement.

(b) In order for the Borrower to obtain Advances in excess of four hundred million dollars ($400,000,000), the Borrower shall provide CGMI with written notice of such a request, and shall either cash collateralize such excess Advances or deposit into the Account U.S. Treasury securities or other bonds rated “investment grade” by Moody’s and/or Standard & Poors that are acceptable to CGMI (“Investment Grade Bonds”) prior to disbursement of the requested Advance. The amount of U.S. Treasury securities or Investment Grade Bonds to be deposited will be specified by CGMI in its reasonable discretion consistent with its credit risk analysis. Upon such deposit, such cash and/or securities (including interest paid thereon and the proceeds thereof) will constitute Collateral. CGMI will not be required to make any Advances to the Borrower in excess of four hundred million dollars until such deposit is made by the Borrower.

(c) The Borrower may withdraw or substitute (i) cash or cash equivalents or (ii) securities or other property reasonably acceptable to CGMI for any property in the Account constituting all or part of the Collateral as security for the Loan Amount so long as (i) no “event of default” exists and is continuing or would result therefrom and (ii) any minimum equity level required by law continues to be on deposit in the Account; provided, however, that no withdrawal may be made by the Borrower if after such withdrawal the total amount of “equity” in the Account (including cash and cash equivalents) is less than fifty percent (50%) of the Market Value (including cash and cash equivalents) of the Collateral. (For purposes of this Agreement, “equity” means the Borrower’s ownership interest in the Account, which is computed by adding the amount that represents the current Market Value of the Collateral and subtracting the amount of the Loan Amount principal balance and any “short position” in the Account).

(d) The Borrower agrees: (i) to provide to CGMI with respect to the securities included in the Collateral and deposited in the Account stock powers duly executed in blank, and to take any other action reasonably requested by CGMI to maintain and

preserve CGMI’s first priority lien and security interest in the Collateral, and (ii) to the extent permitted by law, CGMI may file a financing statement with respect to the Collateral with the Borrower’s name reflected as “debtor” thereunder (without signing the financing statement) that complies with the requirements of the New York Uniform Commercial Code then in effect (“NYUCC”). CGMI will use reasonable care in the custody of the Collateral in the Account and CGMI will keep the Collateral identifiable pursuant to Section 9-207(b)(3) of the NYUCC. CGMI will not be required to comply with any other provision of Section 9-207 of the NYUCC (except Section 9-207 (b)(4)(C)) or with any provision of Section 9-208 of the NYUCC, other than duties expressly set forth in this Agreement and applicable to CGMI.

(e) Unless an “event of default” has occurred and is continuing under Section 7 of this Agreement and CGMI shall have notified the Borrower in writing of its intention to exercise voting rights as to the applicable securities comprising Collateral hereunder, the Borrower shall be entitled to exercise any and all voting and other powers of an owner with respect to the Stock and other securities comprising Collateral for any purposes not inconsistent with this Agreement.

5.) Representations and Warranties

(a) Each party represents and warrants to the other party that it has full authority to enter into this Agreement and to perform its obligations hereunder, and that this Agreement complies with all laws, rules and regulations applicable to such party. In addition, the Borrower represents and warrants to CGMI that: (i) the Borrower is not in default under any material agreement to which it is a party or by which its assets are bound and the Borrower’s execution and performance under this Agreement will not cause the Borrower to be in default under any such agreement; (ii) the Collateral held in the Account is not subject to any lien, encumbrance or impediment to transfer that is superior to, or on a parity with, CGMI’s lien and security interest hereunder; (iii) while the Loan Amount (and accrued interest, if any) is outstanding, the Borrower will not: (A) pledge the Collateral held in the Account or grant a security interest in such Collateral to a third party, enter into a “lock-up” agreement (other than customary “lock-up” arrangements in connection with public offerings of Stock that expressly recognize, preserve and protect CGMI’s first priority lien and security interest in the Collateral) or other agreement that adversely affects such Collateral and CGMI’s security interest therein, or permit such Collateral to become subject to any lien, encumbrance or impediment to transfer other than as provided above, (B) permit the Collateral to be sold or transferred other than in compliance with Section 4(c) of this Agreement, or (C) sell or dispose of substantially all of its assets or merge with another entity unless the Borrower is the surviving entity, and (iv) in the event that pursuant to Section 8 hereof CGMI liquidates and sells the Collateral in the Account, the Collateral will be readily transferable pursuant to such sale in good deliverable form, and, together with the securities of any other person whose sales must be aggregated with the Borrower’s sales under applicable laws or rules, will be saleable under Rule 144 adopted under the Securities Act of 1933, as amended (including, with respect to any securities acquired at least two years prior to the date of sale by CGMI, Rule 144(k) adopted thereunder). The

Borrower will be deemed to repeat each of these representations each time it obtains an Advance hereunder.

(b) Each party acknowledges that in the event of an “event of default” by the Borrower hereunder, CGMI shall not, as a creditor in default, be an affiliate (for purposes of Rule 144) of GGP, the Borrower or its partners.

(c) The Borrower agrees to notify CGMI promptly in writing in the event: (i) the Borrower is notified that it is in default under any material agreement by which it is bound or by which its assets are affected, or (ii) any litigation or arbitration proceeding is commenced against the Borrower that would materially adversely affect the Borrower’s repayment obligation hereunder or impair CGMI’s first priority lien and security interest in the Collateral.

6.) Borrower’s Affirmative Covenants

So long as the Loan Amount shall remain outstanding and unpaid, the Borrower agrees to:

(a) Comply in all material respects with all laws, rules, regulations and orders applicable to the Borrower, such compliance to include, without limitation, paying before the same become delinquent, all taxes, assessments and governmental charges imposed upon the Borrower or the Borrower’s property or assets, except to the extent contested in good faith and by appropriate proceedings.

(b) Maintain its existence as a partnership until the Loan Amount is paid in full.

(c) Immediately give CGMI written notice of the occurrence of any event which could reasonably be expected to result in insolvency or reorganization proceedings being commenced by or against the Borrower.

(d) Furnish CGMI: (i) as soon as available at the end of each calendar quarter (but in any event within 45 days of each quarter end) financial statements respecting the Borrower for such calendar quarter; and (ii) as soon as available after the end of each calendar year, beginning with the calendar year ended December 31, 2004 (but in any event not later than ninety (90) days thereafter) financial statements respecting the Borrower for such calendar year, which financial statements shall have been audited by an independent certified public accountant satisfactory to CGMI, and shall be accompanied by a certificate of such accountant to the effect that such statements present fairly the financial condition and results of operation of the Borrower for such calendar year.

(d) Provide CGMI, from time to time, but no more often than twice during any twelve-month period, during normal business hours and upon reasonable prior notice, with reasonable access to the financial books and records of the Borrower and permit CGMI to inspect and make copies of such books and records, such inspection and copying to be at the Borrower’s expense. Notwithstanding the foregoing, the foregoing

limitation on the number of permitted inspections shall not apply during the occurrence and continuance of any “event of default.”

(e) Cooperate with CGMI and do such further acts and execute and deliver such further instruments and documents as CGMI may reasonably request to effectuate to CGMI’s reasonable satisfaction the transactions contemplated by this Agreement.

7.) Events of Default

Any of the following events that occurs and is continuing while the Loan Amount is outstanding will be considered an “event of default” under this Agreement: (i) any representation or warranty hereunder by the Borrower is incorrect or incomplete in any material respect, (ii) the Borrower fails to pay the Advances when due, (iii) the total amount of the “equity” in the Account (including cash and cash equivalents) is less than forty percent (40%) of the Market Value (including cash and cash equivalents) of the Collateral at the end of any business day (such difference, a “Shortfall”) and the Borrower fails to eliminate the Shortfall within five (5) business days of CGMI’s written request to do so by depositing into the Account sufficient additional cash, Stock, and/or other securities acceptable to CGMI or paying down the Loan Amount so that the Shortfall is eliminated; (iv) the Borrower fails to perform any of its other material obligations hereunder and such failure, if curable, is not remedied by the Borrower within five (5) business days after written notice by CGMI of such failure, or (v) a liquidator, receiver or trustee is appointed with respect to all or substantially all of the Borrower’s assets, or a bankruptcy petition is filed by or against the Borrower, and in the case of a petition filed against the Borrower, the petition is not dismissed within sixty (60) days after it is filed, or (vi) GGP fails for any reason to perform any of its covenants contained in the GGP Certificate, or any of its representations contained in the GGP Certificate become untrue or incorrect in any material respect.

8.) Remedies Available When an Event of Default Occurs

(a) Whenever an event of default has occurred and is continuing, CGMI is authorized, in its sole discretion, to take one or more of the following actions: (i) by written notice to Borrower, declare the Loan Amount to be immediately due and payable, it being understood that such written notice is not to be required in the case of an event of default under Section 7(v), (ii) demand by written notice to Borrower that the Borrower deposit promptly into the Account cash, cash equivalents, Stock, Investment-Grade Bonds and/or other securities acceptable to CGMI so that the total amount of the “equity” in the Account (including cash and cash equivalents) is at least forty percent (40%) of the Market Value (including cash and cash equivalents) of the Collateral, and (iii) after complying with all requirements of law as shall be applicable (except to the extent any particular law or regulation is permissibly waived by the Borrower in this Agreement), proceed in a commercially reasonable manner (as reflected by the standards then prevailing in the securities industry) to liquidate and sell the Collateral and apply the proceeds to the payment of the Loan Amount then outstanding, but CGMI agrees to liquidate and sell only that portion of the Collateral that is necessary to eliminate the Shortfall (if any) and to pay the Loan Amount then due and payable, and (iv) terminate the Commitment hereunder upon written notice to Borrower. Any sale of Collateral may

be made in CGMI’s reasonable discretion on the exchange or market where such business is then usually transacted, at public auction or private sale conducted in a commercially reasonable manner (as reflected by the standards then prevailing in the securities industry) and in accordance with applicable law (except to the extent any particular law or regulation is validly waived by the Borrower), including, but not limited to, the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder and any and all “no action” letters, pronouncements and other guidance issued by the Staff of the Securities and Exchange Commission. In addition to CGMI’s rights under this Agreement, CGMI shall have the right to exercise any one or more of the rights and remedies of a secured creditor under the NYUCC then in effect. All rights and remedies under this Agreement are cumulative and are in addition to all other rights and remedies that CGMI may have at law or equity. Notwithstanding the foregoing and to the extent permitted by law, the Borrower expressly waives compliance with the provisions of Section 202 of the New York Lien Law.

(b) In addition to the remedies described in Section 8(a), CGMI may, during the continuance of an event of default, set off any or all of the Borrower’s property in the Account against any matured obligation then due and owing to CGMI by the Borrower. CGMI shall promptly notify Borrower of each set-off hereunder.

(c) In the event the proceeds from the sale of the Collateral pursuant to Section 8(a) are not sufficient to pay the Loan Amount in full, CGMI shall have an unsecured claim against the Borrower for the deficiency remaining to pay the Loan Amount, and the Borrower shall be liable to pay such deficiency.

9.) Assignment of this Agreement

This Agreement may not be assigned by the Borrower without CGMI’s prior written consent, and shall be binding upon the Borrower’s successors and permitted assigns (whether by merger, consolidation or otherwise). Upon written notice to the Borrower hereunder, CGMI may assign this Agreement to any affiliated entity under common control with CGMI that is authorized by law to extend credit to the Borrower, subject to the Borrower’s consent (not to be unreasonably withheld), and this Agreement shall inure to the benefit of and be binding upon CGMI’s successors and permitted assigns (whether by merger, consolidation or otherwise).

10.) Amendment and Waiver of this Agreement

This Agreement may be amended or waived with the written consent of both parties. Any such amendment or waiver shall be effective as of the date established by both parties. This Agreement may not be amended orally. Any waiver will not be deemed to be a waiver of any other provision of this Agreement.

11.) Limitation on CGMI’s Liability

Neither party shall be liable to the other for: (a) any losses or damages caused directly or indirectly by causes that are beyond its reasonable control, including government restrictions, electrical malfunctions, severe weather, exchange or market rulings, suspension of trading, strikes, acts of war (whether or not declared), acts of

terrorism or other conditions commonly known as “Acts of God”, or (b) any consequential, incidental, indirect or special damages, even if such damages are known or reasonably foreseeable (except to the extent that any damages suffered by the one party are the direct result of the other party’s willful misconduct, gross negligence, or bad faith). This Section 11 shall survive the termination of this Agreement and the payment of the Loan Amount.

12.) Governing Law

This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws rules of such State.

13.) Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable by reason of any law, rule, administrative or judicial decision, such determination shall not (to the maximum extent permitted by law) affect the validity of the remaining provisions of this Agreement.

14.) Entire Agreement

This Agreement (including the GGP Certificate and Exhibit B attached hereto) reflects the entire agreement between CGMI and the Borrower concerning the Loan Amount and supersedes any other agreement, promise, representation or undertaking, whether written or oral, concerning the Loan Amount. In the event of a conflict between the provisions of this Agreement and the provisions of any other agreement between the Borrower and CGMI concerning the Loan Amount, this Agreement will govern.

15.) Non-Disclosure of Confidential Information

Each party agrees to keep confidential and not to disclose the terms of this Agreement, any credit reports about the Borrower received by CGMI from a credit-reporting agency, and all financial statements and other proprietary or other confidential information that each party has received from, or obtained regarding, the other party (“Confidential Information”) to any third party, with the exception of the Borrower’s auditors, investment advisers, attorneys, consultants, or other persons or entities acting-on behalf of the Borrower that have a legitimate business interest in knowing such Confidential Information. Each party will cause any such permitted recipient from such party of Confidential Information to be bound to maintain the confidentiality of the Confidential Information, and will be responsible to the other party if any such permitted recipient breaches these confidentiality obligations. Nothing provided herein will prevent either party from disclosing Confidential Information that: 1) is or hereafter becomes part of the public domain through no fault of the disclosing person or entity; 2) is rightfully received from or furnished by a third party without breach by such third party of any applicable confidentiality restrictions on the third party’s disclosure thereof; 3) is disclosed pursuant to the requirement of law, subpoena or administrative or court order or a demand by any governmental agency or self-regulatory authority having jurisdiction over such person or entity, or 4) is already known to the recipient without breach of any confidentiality obligation. If this Agreement is assigned pursuant to Section 9 to another

person or entity, the assignor will cause its assignee to be bound to maintain the confidentiality of the Confidential Information. This Section 15 shall survive the termination of this Agreement and the payment of the Loan Amount.

16.) Indemnification

Without the necessity of a judicial determination, and whether or not litigation occurs, the Borrower hereby agrees to indemnify, defend and hold harmless CGMI and its directors, officers, employees, agents and affiliates from any and all claims (whether or not meritorious), liabilities, judgments, damages, losses, costs and expenses of any nature whatsoever (including reasonable attorney’s fees and expenses) to the extent arising out of claims or causes of action brought against any indemnified party by any third party and in any way related to, or arising out of or in connection with, this Agreement, including without limitation the Borrower’s grant of a first priority lien and security interest in the Collateral and any action taken or omitted to be taken by CGMI at the Borrower’s request, or any untruth or inaccuracy of any of the Borrower’s representations and warranties in this Agreement. This Section 16 shall survive the termination of this Agreement and the payment of the Loan Amount. Notwithstanding the foregoing, the Borrower will have no obligation to indemnify CGMI or any other indemnitee listed above for any liability, judgment, damage, loss, cost or expense to the extent arising from CGMI’s (or such other indemnitee’s) gross negligence, bad faith, or willful misconduct, or that of CGMI’s (or such other indemnitee’s) directors, officers, employees, agents or affiliates.

17.) Notices

All notices under the terms and provisions of this Agreement shall be in writing, given in person, by mail or by facsimile transmission, promptly confirmed by letter, and any such notice shall be effective when received at the address specified below (which may be changed with written notice to the other party).


If to CGMI:		Louis A. Korahais, Esq.
		Managing Director
		Citigroup Global Markets Inc.
		388 Greenwich Street — 18^th floor
		New York, NY 10013
		Tel.: (212) 723-9267
		Fax: (212) 816-1164

with a copy to:		General Counsel
		Citigroup Global Markets Inc. (Smith Barney Division)
		388 Greenwich Street — 39^th floor
		New York, New York 10013
		Tel.: (212) 816-8872
		Fax: (212) 816-8660

If to Borrower:		M.B. Capital Partners III
		300 North Dakota Ave. Suite 202


		Sioux Falls, South Dakota 57104
		Attn: E. Michael Greaves

with a copy to:		Marshall E. Eisenberg, Esq.
		Neal, Gerber & Eisenberg, LLP
		Two North LaSalle Street, Suite 2200
		Chicago, IL 60602
		Tel.: (312) 269-8020
		Fax: (312) 269-1747

18.) Counterpart Signatures

This Agreement may be signed in several counterparts, all of which, taken together, shall constitute one and the same Agreement.

19.) ARBITRATION

The parties understand that:

§		Arbitration is final and binding on the parties.

§		The parties are waiving their right to seek remedies in court, including the right to jury trial.

§		Pre-arbitration discovery is generally more limited than and different from court proceedings.

§		The arbitrators’ award is not required to include factual findings or legal reasoning, and any party’s rights to appeal or to seek modification of rulings by the arbitrators is strictly limited.

§		The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.

Each party hereto agrees that all claims or controversies, whether such claims or controversies arose prior, on or subsequent to the date hereof, between the Borrower and CGMI and/or any of its present or former officers, directors, or employees concerning or arising from (i) the Account, (ii) Loan Amount and any other transaction hereunder involving CGMI or any predecessor firms by merger, acquisition or other business combination and the Borrower, whether or not such transaction occurred in the Account, or (iii) the construction, performance or breach of this Agreement or any duty relating hereto arising from the business of CGMI or otherwise, shall be determined by binding arbitration before, and only before, any recognized self-regulatory organization or national securities exchange of which CGMI is a member in accordance with its arbitration rules then in force. The Borrower may elect which of these arbitration forums shall hear the matter by sending a registered letter or telegram addressed to CGMI at 388 Greenwich Street, New York, NY 10013-2396, Attn: Law Department. If the Borrower fails to make such election before the expiration of five (5) days after receipt of a written request from CGMI to make such election, CGMI shall have the right to choose the forum. Each arbitrator shall follow the laws specified in Section 12 and shall otherwise give effect to the terms of this Agreement.

No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied, (ii) the class is decertified, or (iii) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement except to the extent stated herein.

BY SIGNING BELOW, EACH PARTY AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT SECTION 19.

BORROWER:
M.B. CAPITAL PARTNERS III, a South Dakota partnership


By:	General Trust Company,
	as trustee of the MBA Trust

	By:	/s/ E. Michael Greaves
		E. Michael Greaves
		Vice President


Account Number
CITIGROUP GLOBAL MARKETS INC.

By:		/s/ Louis A. Korahais
		Signature of Authorized Official

		Louis A. Korahais, Managing Director
		Name and Title of Authorized Official

Exhibit “A”

CERTIFICATE OF GENERAL GROWTH PROPERTIES, INC.

To: Citigroup Global Markets Inc. (“CGMI”)

In order to induce CGMI to extend credit to M.B. Capital Partners III (“MB”) pursuant to the Term Loan Agreement between CGMI and MB dated November 10, 2004 (the “Loan”), the undersigned hereby covenants and represents on behalf of General Growth Properties, Inc. (the “Company”) that:

1.) The Company will instruct its current transfer agent (or any subsequently appointed transfer agent) that following certification by CGMI that an “event of default” (as defined in the Term Loan Agreement) has occurred and is continuing, and assuming there has been no change in the circumstances of CGMI since the date of the Term Loan Agreement that could cause CGMI to be considered an “affiliate” of the Company (as defined in Rule 144 of the Securities Act of 1933), the transfer agent shall accept, rely upon and implement any and all instructions given directly by CGMI to the transfer agent for the purpose of promptly removing the restrictive legend from any certificates evidencing shares of common stock of GGP (the “Stock”) which are pledged to CGMI to secure repayment of the Loan and, that is eligible to be sold by CGMI pursuant to Rule 144(k) under the Securities Act of 1933 The Company will promptly execute such documents, provide such legal opinions, and take whatever additional action is necessary to permit the transfer agent to accept and act upon such instruction.



	By:
		[Signature of Authorized Representative]


		[Print Name and Title Authorized Representative]

Exhibit “B”

LOANABLE VALUES OF SECURITIES THAT CONSTITUTE COLLATERAL

Cash, 100% Loanable Value

General Growth Properties, Inc., 50% Loanable Value
Other equities traded on the New York Stock Exchange or NASDAQ, 50% Loanable Value

U.S. Treasuries less than one year to maturity, 99% Loanable Value
1-3 years to maturity, 98% Loanable Value
3-5 years to maturity, 97% Loanable Value
5-10 years to maturity, 96% Loanable Value
10-20 years to maturity, 95% Loanable Value
More than 20 years to maturity, 94% Loanable Value

Investment Grade Corporate Bonds, Tier I*
0 - $50, Loanable Value equal to 90% of Face Value
$50 +, Loanable Value equal to 90% of Market Value

Investment Grade Corporate Bonds, Tier II**
0 - $50, Loanable Value equal to 90% of Face Value
$50+, Loanable Value equal to 80% of Market Value


*Tier I includes ratings of ANA+ through AA-

**Tier II includes ratings of A through BBB-

EX-99.22 6 c17957exv99w22.htm FIRST AMENDMENT TO TERM LOAN AGREEMENT exv99w22

EXHIBIT 22

Execution Copy

FIRST AMENDMENT TO TERM LOAN AGREEMENT

THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this “Amendment”) is made and entered into as of this 2^nd day of August, 2007 (“Amendment Effective Date”) by and between Citigroup Global Markets, Inc. (“CGMI”), a New York corporation whose principal place of business is located at 388 Greenwich Street, New York, NY 10013, and M.B. Capital Partners III (the “Borrower”), a partnership organized under South Dakota law whose principal place of business is located at 300 North Dakota Avenue, Suite 202, Sioux Falls, South Dakota 57104, to set forth the terms and conditions that will govern one or more extensions of credit (each, an “Advance”) by CGMI to the Borrower.

RECITALS

A. The Borrower and CGMI entered into that certain Term Loan Agreement dated as of November 9, 2004 (the “Loan Agreement”).

B. The parties hereto desire to enter into this Amendment for the purpose of making certain amendments to the Loan Agreement.

Now, therefore, in consideration of the terms and conditions contained herein, in the Loan Agreement and any loans or extension of credit heretofore, now or hereafter made to or for the benefit of the Borrower by CGMI, the Borrower and CGMI hereby agree and amend the Loan Agreement as follows:

AGREEMENTS

1. Definitions. All capitalized words and phrases used herein without definition shall have the same meanings set forth and assigned to such terms in the Loan Agreement. To the extent that terms which were defined in the Loan Agreement are also defined herein, from and after the date of this Amendment, each such defined term, whether used herein or in the Loan Agreement, shall have the meaning ascribed to it herein whether or not the definition is specifically amended in this Amendment.

2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:

(A) Section 1(b) of the Loan Agreement is hereby deleted and the following new Section 1(b) is substituted therefor:

“(b) The Borrower will apply one or more Advances to finance the purchase of shares of common stock (“Stock”) of General Growth Properties, Inc. (“GGP”).”

(B) Section 1(c) of the Loan Agreement is hereby amended by deleting the second (2^nd) sentence thereof and substituting therefor the following sentence:

“The Borrower agrees to deposit into the Account, as of the date of such Advance, Stock, Investment Grade Bonds (as defined below) or other securities reasonably acceptable to CGMI with an aggregate Market Value equal to the lesser of: (1) an aggregate loanable amount equal to at least two hundred percent

(200%) of that portion of the Advance that is not cash collateralized or (ii) One Billion Dollars ($1,000,000,000.00).”

(C) Section 2 of the Loan Agreement is hereby amended by deleting the first two (2) sentences thereof and substituting the following two (2) sentences therefor:

“The Borrower agrees to pay interest to CGMI quarterly in arrears no later than five (5) business days following the end of each quarterly period (i.e. January 31, April 30, July 31 and October 31), commencing with the quarter ending October 31, 2007, until the Loan Amount (as defined in Section 3(a) of this Agreement is paid in full. Such interest, for each quarterly period, will be computed at the rate per annum equal to the average of the daily one month London Interbank Offered Rate (“LIBOR”) as reported on Bloomberg for each day of the interest cycle, plus fifty (50) basis points, calculated from the 21^st day of each calendar month to the 20^th day of the following calendar month.”

(D) Section 3(d) of the Loan Agreement is hereby amended by deleting clause (ii) in its entirety and by substituting therefor “intentionally omitted”.

(E) Section 4(b) of the Loan Agreement is hereby deleted in its entirety and by substituting therefor “intentionally omitted”.

3. General.

	(a)		Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflicts of law rules of such State.

	(b)		Continuing Force and Effect of Loan Agreement. Except as specifically modified or amended by the terms of this Amendment, all other terms and provisions of the Loan Agreement and all documents executed and delivered in connection therewith are incorporated by reference herein, and in all respects, shall continue in full force and effect. Borrower, by execution of this Amendment, hereby reaffirms, assumes and binds itself to all of its obligations, duties, rights, covenants, terms and conditions that are contained in the Loan Agreement as amended hereby.

	(c)		References to Loan Agreement. Each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof’, or words of like import, and each reference to the Loan Agreement in any and all instruments or documents delivered in connection therewith, shall be deemed to refer to the Loan Agreement, as amended hereby.

	(d)		Counterparts. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same agreement.

[signature pages follow]

IN WITNESS WHEREOF, Borrower and CGMI have executed this Amendment to the Loan Agreement as of the day and year set forth above.


		BORROWER:

		M.B. CAPITAL PARTNERS III, a South Dakota Partnership

		By:		General Trust Company as Trustee of MBA Trust

		By:		/s/ Marshall E. Eisenberg
		Name:		Marshall E. Eisenberg
		Title:		President

		CGMI:

		CITIGROUP GLOBAL MARKETS, INC.

		By:		/s/ Stuart N. Weiss
		Name:		Stuart N. Weiss
		Title:		Managing Director

EX-99.23 7 c17957exv99w23.htm JOINT FILING AGREEMENT exv99w23

EXHIBIT 23

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a statement on Schedule 13D and Schedule 13G (including amendments thereto) with respect to the Common Stock of General Growth Properties, Inc. and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, have executed this Joint Filing Agreement this 21^st day of August 2007.


GENERAL TRUST COMPANY
By:	/s/ E. Michael Greaves
	Name:	E. Michael Greaves
	Title:	Vice President


M.B. CAPITAL PARTNERS III
By:	General Trust Company, Trustee of MBA Trust, a Partner

	By:	/s/ E. Michael Greaves
	Name:	E. Michael Greaves
	Title:	Vice President


M.B. CAPITAL UNITS LLC
By:	M.B. Capital Partners III,
	its sole member

	By:	General Trust Company, Trustee of MBA Trust, a Partner

		By:	/s/ E. Michael Greaves
		Name:	E. Michael Greaves
		Title:	Vice President

-----END PRIVACY-ENHANCED MESSAGE-----


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A.	General Trust Company

	(a)	Name of Person Filing:	General Trust Company (“GTC”)

	(b)	Organization:	GTC is a South Dakota trust company, the executive officers and directors of which are:



	(c)	Principal Business:	Providing trust and financial services to trusts for the benefit of members of the Bucksbaum family, which for the purposes hereof, include the descendants of Martin, Matthew and Maurice Bucksbaum, and other family members.

	(d)	Address:	300 North Dakota Avenue Sioux Falls, South Dakota 57104

	(e)	Prior Criminal Convictions:	None

	(f)	Prior Civil Proceedings with Respect to Federal or State Securities Laws:	None

B.	M.B. Capital Partners III

	(a)	Name of Person Filing:	M.B. Capital Partners III (“M.B. Capital”)

	(b)	Organization:	M.B. Capital is a South Dakota general partnership, the general partners of which are:


			None of the general partners of M.B. Capital, Matthew Bucksbaum or the other GGC Officers has during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Each of Matthew Bucksbaum and the other GGC Officers are United States citizens.

			See information above under Item 2A for more information on GTC.

	(c)	Principal Business:	Investing in the Common Stock of the Issuer and the units of limited partnership interest in GGP Limited Partnership.

	(d)	Address:	300 North Dakota Avenue Sioux Falls, South Dakota 57104

	(e)	Prior Criminal Convictions:	None

	(f)	Prior Civil Proceedings with Respect to Federal or State Securities Laws:	None

C.	M.B. Capital Units L.L.C.

	(a)	Name of Person Filing:	M.B. Capital Units L.L.C. (“Units L.L.C.”)

	(b)	Organization:	Units L.L.C. is a Delaware member-managed limited liability company, whose sole member is M.B. Capital. See information above under Item 2B for more information on M.B. Capital.

	(c)	Principal Business:	Investing in the Common Stock of the Issuer and the units of limited partnership interest in GGP Limited Partnership.

	(d)	Address:	300 North Dakota Avenue Sioux Falls, South Dakota 57104

	(e)	Prior Criminal Convictions:	None

	(f)	Prior Civil Proceedings with Respect to Federal or State Securities Laws:	None

		Pursuant to MB Capital’s Second Amended and Restated Agreement of Limited Partnership dated as of August 1, 2007, none of the 10,094,713 Purchased Shares are allocated to GGC and the Matthew Bucksbaum Revocable Trust. See Item 6.

		GTC has the sole power to vote or direct the vote of 146,644 shares of Common Stock. GTC, M.B. Capital and Units L.L.C. share the power, upon conversion of the Units, to vote or direct the vote of 45,328,918 shares of Common Stock. GTC and M.B. Capital share the power to vote or direct the vote of 21,403,002 shares of Common Stock. GTC and Matthew Bucksbaum, as co-trustees of a trust for the benefit of certain members of the Bucksbaum family, share the power to vote or direct the vote of 2,766,209 shares.

		GTC has the sole power to dispose or direct the disposition of 146,644 shares of Common Stock. GTC, M.B. Capital and Units L.L.C. share the power to dispose or direct the disposition of 45,328,918 shares of Common Stock. GTC and M.B. Capital share the power to dispose or direct the disposition of 21,403,012 shares of Common Stock. GTC and Matthew Bucksbaum, as co-trustees of a trust for the benefit of certain members of the Bucksbaum family share the power to dispose or direct the disposition of 2,766,209 shares.

		Except as set forth in this Item 5, as of the date hereof, none of the Reporting Persons, nor to the knowledge of any of the Reporting Persons, any of the persons listed in Item 2 hereof, beneficially owns any shares of Common Stock other than the shares by the Reporting Persons. Matthew Bucksbaum individually owns 1,064,135 shares of Common Stock with the sole power to vote and to dispose of such shares. Mr. Bucksbaum disclaims beneficial ownership of 17,148 shares of Common Stock beneficially owned by Mr. Bucksbaum’s spouse and 794,125 shares of Common Stock beneficially owned by the Matthew and Carolyn Buckbaum Family Foundation. Marshall Eisenberg owns 25,000 shares of Common Stock with respect to which Mr. Eisenberg has sole power to vote and to dispose of such shares.

	a.		Marshall E. Eisenberg — President, Chairman of the Board of Directors and majority stockholder. Mr. Eisenberg is a partner of Neal, Gerber & Eisenberg, LLP, and his business address is Two North LaSalle Street, Chicago, IL 60602.

	b.		E. Michael Greaves — Vice President, Cashier and Director.

	c.		Earl N. Melamed — Secretary and Director. Mr. Melamed is a partner of Neal, Gerber & Eisenberg LLP, and his business address is Two North LaSalle Street, Chicago, IL 60602.

	d.		Patricia Gessmann — Assistant Cashier and Director. Ms. Gessmann is an executive assistant at the Issuer.

	e.		Cheryl Hoover — Assistant Secretary. Ms. Hoover is an employee of GTC, and her business address is 300 North Dakota Avenue, Sioux Falls, South Dakota, 57104.



		Unless otherwise noted above, the business address for each of the persons listed above is 110 North Wacker Drive, Chicago, Illinois 60606. None of the executive officers and directors of GTC has during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. All of the executive officers and directors of GTC are United States citizens.

	(i)		various trusts for the benefit of members of the Bucksbaum family for which GTC is the trustee (collectively, the “GTC Trusts”);

	(ii)		the Matthew Bucksbaum Revocable Trust, of which Matthew Bucksbaum is the trustee; and

	(iii)		General Growth Companies, Inc., a Delaware corporation (“GGC”), whose sole director and stockholder is Matthew Bucksbaum. The executive officers of GGC (collectively, the “GGC Officers”) are:

	1.		Matthew Bucksbaum — President.

	2.		E. Michael Greaves — Vice President and Secretary.

	3.		Gene Krinn — Vice President.

	4.		Patricia Gessmann — Assistant Secretary.



		The principal business of the GTC Trusts, the Matthew Bucksbaum Revocable Trust and General Growth Companies, Inc. is making investments.

		The business address for all GTC Trusts is 300 North Dakota Avenue, Sioux Falls, South Dakota, 57104. The business address for the Matthew Bucksbaum Revocable Trust, GGC, Matthew Bucksbaum and the other GGC Officers is 110 North Wacker Drive, Chicago, IL 60606. Mr. Bucksbaum is a director and the chairman emeritus of the board of the Issuer. Mr. Krinn is employed by M.B. Investments, LLC, which provides investment advisory services to GTC.

	(i)		69,644,773 shares held by GTC, including 45,328,908 shares issuable upon conversions of the Units, or 23.9% of the outstanding shares of Common Stock;

	(ii)		66,731,920 shares held by M.B. Capital, including 45,328,908 shares issuable upon conversion of the Units, or 22.9% of the outstanding shares of Common Stock and

	(iii)		45,328,918 shares held by Units L.L.C., including 45,328,908 shares issuable upon conversion of the Units, or 15.6% of the outstanding shares of Common Stock.

		E. Michael Greaves owns 6,542 shares of Common Stock with respect to which Mr. Greaves has sole power to vote and to dispose of such shares. Patricia Gessmann owns 4,712 shares of Common Stock with respect to which Ms. Gessmann has sole power to vote and to dispose of such shares.

(c)		Except as set forth below, during the last 60 days, no transactions in the Common Stock were effected by the Reporting Persons, other than the following purchases by M.B. Capital:


Date	No. of Shares		Price

8/3/07		1,299,945	$	46.94
8/6/07		579,505	$	47.05
8/7/07		99,841	$	47.50
8/8/07		500,000	$	50.11
8/9/07		720,000	$	50.90
8/10/07		1,000,000	$	51.03
8/13/07		1,000,000	$	51.00
8/14/07		575,000	$	50.22
8/15/07		1,600,000	$	49.49
8/16/07		1,303,022	$	48.91
8/17/07		1,300,000	$	50.27
8/20/07		117,400	$	51.12


(d)		No persons other than the Reporting Persons have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of shares of Common Stock owned by the Reporting Persons.

(e)		Not Applicable