LIMITED LIABILITY COMPANY AGREEMENT OF MAGUIRE MACQUARIE OFFICE, LLC
Exhibit
10.1
OF
▇▇▇▇▇▇▇
MACQUARIE OFFICE, LLC
LIMITED
LIABILITY COMPANY AGREEMENT dated as of October 26, 2005 (this
“Agreement”),
of
▇▇▇▇▇▇▇ MACQUARIE OFFICE, LLC, a Delaware limited liability company (the
“Company”),
by
and between MACQUARIE OFFICE II LLC, a Delaware limited liability company
(“MOF”), and ▇▇▇▇▇▇▇ PROPERTIES, L.P., a Maryland limited partnership
(“▇▇▇▇▇▇▇”
and
together with MOF, the “Members”).
RECITAL
WHEREAS,
the Members desire to form the Company in accordance with the provisions of
the
Delaware Limited Liability Company Act, as amended from time to time (the
“Act”),
and
desire to enter into a written agreement pursuant to the Act governing the
affairs of the Company and the conduct of its business.
NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE
1
DEFINITIONS
1.1Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Act.
ARTICLE
2
GENERAL
PROVISIONS
2.1Formation.
▇▇▇▇▇ ▇▇▇▇▇▇, as an authorized person within the meaning of the Act, executed,
delivered and filed a certificate of formation for the Company as described
in
Section 18-201 of the Act (the “Certificate
of Formation”),
on
behalf of the Members, with the Secretary of State of the State of Delaware
on
October 20, 2005, in conformity with the Act. Upon the execution of this
Agreement by the Members, her powers as an authorized person, or otherwise,
ceased, and she has no interest in the Company or rights with respect thereto.
The Members hereby ratify the formation of the Company under the provisions
of
the Act. The Company and, if required, each of the Members shall execute or
cause to be executed from time to time all other instruments, certificates,
notices and documents and shall do or cause to be done all such acts and things
(including keeping books and records and making publications or periodic
filings) as may now or hereafter be required for the formation, valid existence
and, when appropriate, termination of the Company as a limited liability company
under the laws of the State of Delaware.
2.2Company
Name. The name of the Company is “▇▇▇▇▇▇▇ MACQUARIE OFFICE, LLC,” and its
business shall be carried on in such name with such variations and changes
as
the Manager (as hereinafter defined) deems necessary to comply with requirements
of the jurisdictions in which the Company’s operations are
conducted.
2.3Registered
Office; Registered Agent. The Company shall maintain a registered office in
the
State of Delaware. The name and address of the Company’s registered agent in the
State of Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Board may, from time to time, change the
Company’s registered office and/or registered agent and shall forthwith amend
the Certificate of Formation to reflect such change(s).
2.4Purpose;
Nature of Business Permitted; Powers. The Company is formed for the purpose
of
engaging in any lawful business, purpose or activity for which limited liability
companies may be formed under the Act. The Company shall possess and may
exercise all the powers and privileges granted by the Act or by any other law
or
by this Agreement, together with any powers incidental thereto, insofar as
such
powers and privileges are necessary or convenient to the conduct, promotion
or
attain-ment of the business purposes or activities of the Company.
2.5Term.
The
existence of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware
in
accordance with the Act, and, subject to the provisions of Article
9
hereof,
the Company shall have a perpetual life.
2.6Tax
Treatment. Unless otherwise determined by all of the Members, the Company shall
be treated as a partnership for U.S. federal income tax purposes (as well as
for
any analogous state or local tax purposes), and the Members and the Company
shall timely make any and all necessary elections and filings for the Company
to
be treated as a partnership for U.S. federal income tax purposes (as well as
for
any analogous state or local tax purposes).
ARTICLE
3
MEMBERS
3.1Members.
The name, address and Common Interest Percentage (as hereinafter defined) of
the
Members are set forth on Schedule A
hereto,
which shall be amended from time to time to reflect additional capital
contributions of Members or the Transfer (as hereinafter defined) of Common
Interests (as hereinafter defined) of any Member.
3.2Admission
of New Members. No Person shall be admitted as a Member of the Company without
the approval of all the Members.
2
3.3No
Liability of Members. Except as set forth in Section
8.3,
all
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of
the
Company, and no Member shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a
Member.
3.4Power
to
Bind the Company. No Member (acting in its capacity as such) shall have any
authority to bind the Company to any third party with respect to any
matter.
ARTICLE
4
MANAGEMENT
4.1Management
of the Company. Subject to any matters which are expressly reserved to the
Members for decision under the Act, the business and affairs of the Company
shall be managed by, or under the direction of, a manager (the
“Manager”),
which
shall be responsible for policy setting and approval of the overall direction
of
the Company. The initial Manager is ▇▇▇▇▇▇▇ MO Manager, LLC, a Delaware limited
liability company. Any Manager may be removed without or without cause, but
only
by ▇▇▇▇▇▇▇. Any vacancy occurring on the Board shall be filled by ▇▇▇▇▇▇▇.
Persons dealing with the Company are entitled to rely conclusively upon the
power and authority of the Manager herein set forth.
ARTICLE
5
CAPITAL
STRUCTURE AND CONTRIBUTIONS
5.1Capital
Structure. The capital structure of the Company shall consist of one class
of
common interests (“Common
Interests”).
Except as otherwise set forth herein, each of the Common Interests shall be
identical.
5.2Capital
Contributions. On the Contribution Date (as defined below), (a) ▇▇▇▇▇▇▇ shall
contribute to the Company 100% of the membership interests in ▇▇▇▇▇▇▇ Properties
- One Cal Plaza, LLC, a Delaware limited liability company ("MP-OCP"), which
owns the real property commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇, and (b) MOF shall contribute to the Company cash in the amount of
$5,986,842. In exchange for such capital contributions, each Member will receive
Common Interests in the Company in proportion to the "Common Interest
Percentage" set forth opposite the name of such Member on Schedule A
hereto.
"Contribution
Date"
means a
date determined by the Manager and specified in a notice to the Members given
at
least one business day in advance of such date. The Manager shall not give
notice of the Contribution Date to the Members until it has obtained any
consents or approvals from third parties necessary to effect the contribution
of
interests in MP-OCP to the Company.
3
5.3Additional
Contributions. Except with the approval of the Manager, no Member shall be
obligated or permitted to make any additional contribution to the Company’s
capital.
5.4No
Withdrawal of Capital Contributions. Except upon the dissolution and liquidation
of the Company as set forth in Article
9
hereof,
no Member shall have the right to withdraw its capital
contributions.
5.5Maintenance
of Capital Accounts. The Company shall establish and maintain capital accounts
for each Member in accordance Treasury Regulations Section 1.704-(b). The
balance in a Member’s capital account shall be increased by (i) the amount of
each contribution made by such Member and (ii) its allocable share of net
profits and shall be decreased by (I) the amount of each distribution made
to
such Member and (II) its allocable share of net losses.
ARTICLE
6
ALLOCATIONS
AND DISTRIBUTIONS
6.1Allocations
of Net Profits and Net Losses from Operations. Net profits and net losses shall
be allocated among the Members ratably in proportion to their respective Common
Interest Percentages. Notwithstanding the foregoing, allocation of net profits
and net losses shall comply with the provisions of Section 704 of the Code
(as
hereinafter defined) and the Treasury Regulations promulgated
thereunder.
6.2No
Right
to Distributions. No Member shall have the right to demand or receive
distributions of any amount, except as expressly provided in this Article
6
6.3Distributions.
Upon receipt of the capital contributions described in Section 5.2, the Company
shall make a distribution to ▇▇▇▇▇▇▇, by issuing a promissory note to ▇▇▇▇▇▇▇,
in the form of Exhibit
A
hereto,
in a principal amount equal to $65,000,000, which distribution shall be treated
as a reimbursement of preformation capital expenditures under Treasury
Regulation Section 1.707-4(d).
(a) On
the
last day of each calendar month following the formation of the Company, the
Company shall make a cash distribution to MOF of an amount equal to the product
of (i) $5,986,842, multiplied by (ii) the product obtained by mutiplying 0.0875
by a fraction, the numerator of which is the number of days that have elapsed
since the previous distribution to MOF pursuant to this sentence (or if there
was no previous distribution, the date that MOF made the capital contribution
described in Section 5.2) and the denominator of which is 360.
(b) Other
than as set forth above, The Manager shall determine, in its sole and absolute
discretion, net cash flow available for distribution to Members and the amount,
if any, to be distributed to Members, and shall authorize and distribute to
the
Members pro rata in proportion to their respective Common Interest Percentages.
4
6.4Withholding.
The Company is authorized to withhold from distributions to a Member, or with
respect to allocations to a Member, and to pay over to a Federal, foreign,
state
or local government, any amounts required to be withheld pursuant to the
Internal Revenue Code of 1986, as amended (the “Code”),
or
any provisions of any other Federal, foreign, state or local law. Any amounts
so
withheld shall be treated as having been distributed to such Member pursuant
to
this Article
6
for all
purposes of this Agreement, and shall be offset against the current or next
amounts otherwise distributable to such Member.
ARTICLE
7
BOOKS
AND
REPORTS
7.1Books
and
Records; Accounting. The Company shall keep or cause to be kept at the office
of
the Company (or at such other place as the Board in its discretion shall
determine) full and accurate books and records regarding the status of the
business and financial condition of the Company.
7.2Form
K-l.
After the end of each Fiscal Year, the Board shall cause to be prepared and
transmitted, as promptly as possible, and in any event within ninety (90) days
of the close of the Fiscal Year, a Federal income tax Form K-1 and any required
similar state income tax form for each Member.
7.3Tax
Matters Partner. The Manager is hereby designated as the Company’s “Tax Matters
Partner” under Section 6231(a)(7) of the Code, and shall have all the powers and
responsibilities of such position as provided in the Code. The Tax Matters
Partner is specifically directed and authorized to take whatever steps are
necessary or desirable to perfect such designation, including filing any forms
or documents with the Internal Revenue Service and taking such other action
as
may from time to time be required under the Regulations issued under the Code.
The Tax Matters Partner shall cause to be prepared and shall sign all tax
returns of the Company, make any tax elections for the Company allowed under
the
Code or the tax laws of any state or other jurisdiction having taxing
jurisdiction over the Company and monitor any governmental tax authority in
any
audit that such authority may conduct of the Company’s books and records or
other documents.
7.4REIT
Status. The Manager shall at all times use its commercially reasonable efforts
to conduct the business of the Company such that the nature of the Company's
assets and gross revenues (as determined pursuant to Section 856(c)(2), (3)
and (4) of the Code) would permit the Company (determined as if the Company
were
a “real estate investment trust”) to qualify as a real estate investment trust
under Section 856 of the Code and would permit the Company to avoid
incurring any tax on prohibited transactions under Section 857(b)(6) of the
Code and any tax on re-determined rents, re-determined deductions, and excess
interest under Section 857(b)(7) of the Code (determined as if the Company
were a real estate investment trust); provided,
however,
that
the Manager shall be permitted to cause the Company to form a taxable REIT
subsidiary, within the meaning of Section 856(l) of the Code to comply with
this
Section
5
7.4,
and the
Manager shall give MOF notice of any such formation within five (5) days of
such
formation.
ARTICLE
8
WITHDRAWAL;
TRANSFERS OF COMMON INTERESTS
8.1No
Right
to Withdraw. The Members shall not at any time withdraw, retire or resign from
the Company, it being understood and agreed that a redemption pursuant to
Section
8.3
shall
not be deemed a withdrawal, retirement or resignation. Withdrawal, retirement
or
resignation by a Member in contravention of this Article
8
shall
subject such Member to liability for all damages caused by such retirement,
withdrawal or resignation.
8.2Restriction
on Transfers. No Member shall have the right to sell, convey, assign, transfer,
pledge, grant a security interest in or otherwise dispose of (each a
“Transfer”)
all or
any part of its Common Interests, other than (a) upon the prior written consent
of all of the Members, (b) a Transfer to an affiliate, or (c) a Member's
non-foreclosable pledge of its interest; provided,
however,
that no
such assignment shall relieve any Member from its obligations hereunder. All
Transfers in violation of this Article
8
are null
and void.
8.3Redemption.
If the closing under the Contribution Agreement, dated as of October 26, 2005
(the "Contribution Agreement"), by and among ▇▇▇▇▇▇▇, MOF and the Company,
has
not occurred by October 26, 2006, or if the Contribution Agreement is terminated
prior to such date, then, without any action on the part of the Manager, MOF
or
▇▇▇▇▇▇▇, all of MOF’s Common Interests shall be automatically redeemed and, from
and after such date, MOF's Common Interests shall no longer be deemed
outstanding. On such day, the Company shall pay MOF cash in an aggregate amount
equal to the Redemption Price (as defined below). The “Redemption Price” shall
mean the excess of (a) the product of (i) $5,986,842, multiplied by (ii) one
plus the product obtained by mutiplying 0.0875 by a fraction, the numerator
of
which is the number of days that have elapsed since MOF made the capital
contribution described in Section 5.2, and the denominator of which is 360,
over
(b) the aggregate amount of distributions previously paid by the Company to
MOF.
▇▇▇▇▇▇▇ hereby guarantees the full and prompt payment of the Redemption Price
payable to MOF hereunder.
ARTICLE
9
DISSOLUTION
OF THE COMPANY
9.1Dissolution.
The Company shall be dissolved upon the occurrence of either of the following
events (an “Event
of Termination”):
(a) a
determination by all of the Members to dissolve the Company; or
6
(b) the
entry
of a decree of judicial dissolution under Section 18-802 of the
Act.
No
other
event, including the retirement, insolvency, liquidation, dissolution, insanity,
expulsion, bankruptcy, death, incapacity or adjudication of incompetency of
a
Member, shall cause the Company to be dissolved.
9.2Liquidation.
If an Event of Termination shall occur, then the Company shall be liquidated
and
its affairs shall be wound up. All proceeds from such liquidation shall be
distributed in accordance with the provisions of Section 18-804 of the Act,
and
all interests in the Company shall be cancelled. Distributions to the Members
shall be made in accordance with each Member’s Common Interest Percentage. Upon
the completion of the distribution of the Company’s assets, the Company shall be
terminated and the Members shall cause the Company to execute and file a
Certificate of Cancellation in accordance with Section 18-203 of the Act.
ARTICLE
10
EXCULPATION
AND INDEMNIFICATION
10.1Exculpation.
(a)
Notwithstanding any other provisions of this Agreement, whether express or
implied, or any obligation or duty at law or in equity, no Member or Manager,
nor any officers, directors, stockholders, partners, members, employees,
affiliates, representatives or agents of any Member or Manager, nor any officer,
employee, representative or agent of the Company (individually, a “Covered
Person,”
and
collectively, the “Covered
Persons”)
shall
be liable to the Company or any other person for any act or omission (in
relation to the Company, its property or the conduct of its business or affairs,
this Agreement, any related document or any transaction or investment
contemplated hereby or thereby) taken or omitted by a Covered Person in the
reasonable belief that such act or omission is in or is not contrary to the
best
interests of the Company and is within the scope of authority granted to such
Covered Person by this Agreement, provided such act or omission does not
constitute fraud, willful misconduct, bad faith, or gross
negligence.
10.2Indemnification.
To the fullest extent permitted by law, the Company shall indemnify and hold
harmless each Covered Person from and against any and all losses, claims,
demands, liabilities, expenses, judgments, fines, settlements and other amounts
arising from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative (“Claims”),
in
which the Covered Person may be involved, or threatened to be involved, as
a
party or otherwise, by reason of its management of the affairs of the Company
or
which relates to or arises out of the Company or its property, business or
affairs. A Covered Person shall not be entitled to indemnification under this
Section
10.2
with
respect to: (a) any Claim with respect to which such Covered Person has engaged
in fraud, willful misconduct, bad faith or gross negligence; or (b) any Claim
initiated by such Covered Person unless such Claim (or part
7
thereof)
(i) was brought to enforce such Covered Person's rights to indemnification
hereunder or (ii) was authorized or consented to by all the Members. Expenses
incurred by a Covered Person in defending any Claim shall be paid by the Company
in advance of the final disposition of such Claim upon receipt by the Company
of
an undertaking by or on behalf of such Covered Person to repay such amount
if it
shall be ultimately determined that such Covered Person is not entitled to
be
indemnified by the Company as authorized by this Section
10.2.
10.3Amendments.
Any repeal or modification of this Article
10
by the
Members shall not adversely affect any rights of such Covered Person pursuant
to
this Article
10,
including the right to indemnification and to the advancement of expenses of
a
Covered Person, existing at the time of such repeal or modification with respect
to any acts or omissions occurring prior to such repeal or
modification.
ARTICLE
11
MISCELLANEOUS
11.1Amendment
to the Agreement. Except as otherwise provided in this Agreement, this Agreement
may be amended by, and only by, a written instrument executed by all the
Members.
11.2Successors;
Counterparts. This Agreement (a) shall be binding as to the executors,
administrators, estates, heirs and legal successors, or nominees or
representatives, of the Members and (b) may be executed in several counterparts
with the same effect as if the parties executing the several counterparts had
all executed one counterpart.
11.3Governing
Law; Severability. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to
the
principles of conflicts of law.
11.4Notices.
All notices, requests and other communications to any Member shall be in writing
and shall be given to such Member (and any other party designated by such
Member) at its address or telecopier number set forth in Schedule A
hereto,
or such other address or telecopier number as such Member may hereafter specify
for the purpose by notice. Each such notice, request or other communication
shall be effective: (a) if given by telecopier, when transmitted to the number
specified pursuant to this Section
11.4
and a
confirmation is received from the recipient; or (b) if given by any other means,
when received or refused at the address speci-fied pursuant to this Section
11.4,
as
evidenced by a reputable, disinterested third-party's delivery
receipt.
11.5Waiver
of
Partition. Each of the Members hereby irrevocably waives any and all rights
that
such Member may have to maintain any action for partition of any of the
Company’s property.
8
11.6Interpretation.
Wherever from the context it appears appropriate, each term stated in either
the
singular or the plural shall include the singular and the plural, and pronouns
stated in either the masculine, the feminine, or the neuter gender shall include
the mascu-line, feminine and neuter.
[SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the
date first above written.
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▇▇▇▇▇▇▇
PROPERTIES, L.P.,
a
Maryland limited partnership
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By:
▇▇▇▇▇▇▇ Properties, Inc.,
a Maryland corporation,
its general partner
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By:
Name:
Its
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MACQUARIE
OFFICE II LLC,
a
Delaware limited liability company
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By:
Macquarie Office (US) Corporation,
a Maryland corporation,
its manager
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By:
Name:
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Its
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