be made after any amount has been distributed
under Section 4.1B, then such contribution or Member loan shall be made in
accordance with the Members' respective proportionate shares of the
distributions made under each subsection of Section 4.1 (in reverse order)
unless (and until) on the date of such contribution or Member loan, (1) the
aggregate amount of contributions and Member loans then or theretofore made in
accordance with such proportionate shares by reason of this Section 3.5 equals
(2) the aggregate amount of distributions then or theretofore made under such
subsection.
Section 3.6. 31B31B31B31B31B31BUUUUERISA Matters
.UUUU
The parties acknowledge that BREA is an entity that is intended to
qualify as a "real estate operating company" within the meaning of the U.S.
Department of Labor plan asset regulation (Section 2510.3-101, Part 2510 of
Chapter XXV, Title 29 of the Code of Federal Regulations) and that it is
intended that BREA will have the right to substantially participate directly in
the management, operations and development of the Properties.
Towards that end
on the date hereof, the Company and the Company Subsidiaries shall execute and
deliver the letter agreement in the form attached as Exhibit "H."
Each Member
represents and warrants that it is not, and is not acting on behalf of, (i) an
"employee benefit plan" (within the meaning of Section 3(3) of the U.S. Employee
Retirement Income Security Act
13
of 1974, as amended ("ERISA")), whether or not such plan is subject to ERISA,
(ii) a plan, individual retirement account or other arrangement which is
described in Section 4975 of the U.S. Internal Revenue Code of 1986, as amended
(the "Code") whether or not subject to Section 4975 of the Code or (iii) an
entity which is deemed to hold the assets of any of the foregoing types of
plans, accounts or arrangements, pursuant to ERISA or otherwise.
ARTICLE IV
3B3B3B3B3B3BUUUUDISTRIBUTIONS
.
Section 4.1. 32B32B32B32B32B32BUUUUDistributions
.UUUU
Subject to Sections 3.3, 4.4, 4.5 and 7.2 (and except as provided in
Article V of the "Tax Exhibit" (as hereinafter defined)), each distribution of
Distributable Cash shall be made as follows:
A. 108B108B108B108B108B108BUUUUFirst Level
.UUUU
All such Distributable Cash shall first be distributed, in preference and
priority to any other distribution of Distributable Cash, to BREA, Columbia and
ESC in accordance with their respective relative Company Percentages until there
shall have been distributed to each of BREA and Columbia from such Distributable
Cash under this subsection A an amount sufficient to eliminate the then "15% IRR
Deficiency" (as defined in Exhibit "D" (the "IRR Exhibit")) applicable to such
Members; and there shall be no distributions of Distributable Cash under
subsection B, C or D below at any time when there is a positive 15% IRR
Deficiency with respect to either such Member.
B. 109B109B109B109B109B109BUUUUSecond Level
.UUUU
The balance, if any, of such Distributable Cash remaining after the
distributions pursuant to subsection A above shall be distributed to BREA,
Columbia and ESC, as follows:
(1) 85% to BREA, Columbia and ESC in accordance