Exh 10.1 1/5/2006 1st Amended & Restated LC Agreement


    
      

    

    Exhibit
      10.1

     

    
 

    LIMITED
      LIABILITY COMPANY AGREEMENT 

     

    OF

     

    MAGUIRE
      MACQUARIE OFFICE, LLC

     

    LIMITED
      LIABILITY COMPANY AGREEMENT dated as of October 26, 2005 (this
“Agreement”),
      of
      MAGUIRE MACQUARIE OFFICE, LLC, a Delaware limited liability company (the
“Company”),
      by
      and between MACQUARIE OFFICE II LLC, a Delaware limited liability company
      (“MOF”), and MAGUIRE PROPERTIES, L.P., a Maryland limited partnership
      (“Maguire”
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.
      Julio Davila, 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 “MAGUIRE 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, 1209 Orange Street,
      Wilmington, Delaware 19801. 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. 

     

     


    
      
         

      

      
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    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 Maguire MO Manager, LLC, a Delaware limited
      liability company. Any Manager may be removed without or without cause, but
      only
      by Maguire. Any vacancy occurring on the Board shall be filled by Maguire.
      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) Maguire shall
      contribute to the Company 100% of the membership interests in Maguire Properties
      - One Cal Plaza, LLC, a Delaware limited liability company ("MP-OCP"), which
      owns the real property commonly known as One California Plaza in Los Angeles,
      CA, 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.

     

     


    
      
         

      

      
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    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 Maguire, by issuing a promissory note to Maguire,
      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.
      

     

     


    
      
         

      

      
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    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
      

     


    
      
         

      

      
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    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 Maguire, 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
      Maguire, 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.
      Maguire 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

     

     


    
      
         

      

      
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    (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 

     


    
      
         

      

      
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    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.

     

     


    
      
         

      

      
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    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]

     

     


    
      
         

      

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

     

    

      

        


         

        
          	
                  MAGUIRE
                    PROPERTIES, L.P.,

                  a
                    Maryland limited partnership

                   

                
	
                  By:
                    Maguire Properties, Inc., 

                      
                    a Maryland corporation, 

                      
                    its general partner

                   

                
	
                  By:
                    

                  Name:

                  Its
                    

                


        

        


        


        
          	
                  MACQUARIE
                    OFFICE II LLC,

                  a
                    Delaware limited liability company

                
	 
	
                  By:
                    Macquarie Office (US) Corporation,

                      
                    a Maryland corporation,

                      
                    its manager

                
	 
	 
	
                  By:

                  Name:

                
	
                  Its