Common use of Failure to Contribute Capital Clause in Contracts

Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) by the date such Capital Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, the Capital Defaulting Member, an amount equal to the Capital Default Amount (each such loan, a “Capital Default Loan”). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan). Any Capital Default Loan shall bear interest at a rate equal to 15% per annum and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth (90th) day following the date such Capital Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder); (b) to revoke the Funding Notice for both Members, whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) by the date such Capital Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, the Capital Defaulting Member, an amount equal to the Capital Default Amount (each such loan, a “Capital Default Loan”). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)Member. Any Capital Default Loan shall bear interest at a rate equal to 15% per annum and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth (90th) day following the date such Capital Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder)Parent; (b) to revoke the Funding Notice for both Members, whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunderrights. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by itMember, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) by the date such Capital Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, the Capital Defaulting Member, an amount equal to the Capital Default Amount (each such loan, a “Capital Default Loan”). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)Member. Any Capital Default Loan shall bear interest at a rate equal to 15% per annum and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth (90th) day following the date such Capital Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder)Parent; (b) to revoke the Funding Notice for both Members, whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunderwith respect to the applicable Archstone Residual Asset or Assumed Archstone Liability with respect to which the Capital Contribution as to which such Capital Default Loan has been funded was originally called. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made with respect to such Archstone Residual Asset or Assumed Archstone Liability without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member Partner fails to make a Capital Contribution that is required under pursuant to Section 3.3(b) 3.2.2 hereof by the date such Capital Contribution contribution is due and such failure continues for ten (10) Business Days days after written notice from the Member which any other Partner who has not failed to make its Capital Contribution (any such failing Member Partner shall be a “Capital Defaulting MemberPartner” and the amount of the failed Capital Contribution contribution shall be the “Capital Default Amount”), then then, such failure shall be deemed an Event of Default hereunder and in addition to its other rights and remedies set forth herein, the non-Capital Defaulting Member defaulting Partners shall have any one and only one or more of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) Partnership on behalf of, and as a loan to, to the Capital Defaulting MemberPartner, an amount equal to the Capital Default Amount Amount, to be evidenced by a promissory note in form satisfactory to the Non-Defaulting Partner (each such loan, a “Capital Default Loan”). ) and the payee of such note shall be the “Non-Defaulting Partner.” The Capital Account of the Capital Defaulting Member Partner shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member Partner to the nonNon-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)Partner. Any Capital Default Loan shall bear interest on the original principal amount thereof at a rate equal to 15the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law and shall be payable from any distributions Distributions due the Capital Defaulting Member Partner hereunder, but shall in all events be payable in full by the ninetieth (90th) day following Defaulting Partner on or before the date such Capital six (6) months after the date the Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthlyis advanced. A Capital Default Loan shall be prepayable prepayable, in whole or in part, at any time or from time to time without penalty. While Any such Default Loans shall be secured solely by the Defaulting Partner’s Partnership Interest. Except as expressly provided herein, Default Loans, with interest as aforesaid, shall otherwise be without recourse to any Capital other assets of the Defaulting Partner. The Defaulting Partner hereby grants a security interest in its Partnership Interest to the Non-Defaulting Partner and the Defaulting Partner hereby irrevocably appoints the Non-Defaulting Partner, and any of its respective officers, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, instruments and agreements, including, but not limited to, any note evidencing the Default Loan and such Uniform Commercial Code Financing Statements, continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest in favor of the Non-Defaulting Partner. If the Defaulting Partner fails to pay the amount of the Default Loan when due, the Non-Defaulting Partner may exercise all rights and remedies available to a secured party under the Uniform Commercial Code. The Defaulting Partner agrees that the requirement of the Uniform Commercial Code that the Non-Defaulting Partner give the Defaulting Partner reasonable notice of any proposed sale or disposition of the Defaulting Partner’s Partnership Interest shall be met if such notice is outstanding, notwithstanding anything in this Agreement given to the contrary, all Defaulting Partner at least five (5) days before the time of such sale or disposition. All distributions to the Capital Defaulting Member Partner hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of While any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior outstanding, the Partnership shall be obligated to pay directly to the date such Capital Non-Defaulting Partner, until all Default Loan becomes dueLoans have been paid in full, the non-Capital Defaulting Member amount of (or its applicable Affiliate that has funded the Capital Default Loanx) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant any distributions payable to the applicable Parent GuarantyDefaulting Partner(s), its Parent and (and if y) any proceeds of a sale that would otherwise be payable to the non-Capital Defaulting Member’s Affiliate has funded Partner(s) resulting from the Capital Default Loan, it shall be entitled to all sale of the rights Property or from the sale of a non-Capital the Defaulting Member Partner’s interest in the Partnership as contemplated under this Section 3.4Agreement, including as the case may be. In addition, the Partnership shall pay to the Non-Defaulting Partner, until all rights to enforce Default Loans have been paid in full, all fees or other amounts due the Parent Guaranty as if it were Defaulting Partner or any Defaulting Partner Related Party under this Agreement or any other agreement between the “Creditor Member” thereunder);Partnership or any Subsidiary on the one hand and Defaulting Partner or any Defaulting Partner Related Party on the other hand; or (b) to advance to the Partnership as an additional Capital Contribution the Default Amount whereupon the Percentage Interests of the Partners shall be recalculated as provided in this subparagraph (b), provided that Non-Defaulting Member determines, in its sole discretion, that any additional contribution and/or adjustment to the Percentage Interests of the Partners does not violate the requirements of Code Section 514(c)(9)(E), and the Treasury Regulations thereunder or waives such requirement. After the exercise of the Non-Defaulting Partner’s rights under this subparagraph (b), and provided that Non-Defaulting Member makes the determination or waiver described in the preceding sentence, the (i) Percentage Interest of the Non-Defaulting Partner shall equal a fraction (expressed as a percentage), the numerator of which shall equal the aggregate sum of (x) all Capital Contributions made by the Non-Defaulting Partner other than the Default Amount plus (y) an amount equal to 150% of the Default Amount; and the denominator of which shall equal the aggregate sum of all Contributions made by all Partners under this Agreement, including the Default Amount and (ii) the Percentage Interest of the Defaulting Partner shall equal 100% minus the Percentage Interest of the Non-Defaulting Partner after the application of this formula. As an example, if TRT LLC has made Capital Contributions of $900,000 and DCT LLC has made Capital Contributions of $100,000 and there is a Funding Notice for $200,000 and TRT LLC funds $180,000 and DCT LLC fails to fund $20,000, then if TRT LLC elects under this subparagraph to advance the Default Amount of $20,000 as an additional Capital Contribution, the Percentage Interest of TRT LLC shall equal 92.5% ($900,000+$180,000+ ($20,000x150% or $30,000)/ $1,200,000 and the Percentage Interest of DCT LLC shall equal 7.5%. For purposes of this subparagraph, if there is more than one instance of the application of the formula set forth in this subparagraph, the Default Amount shall be the aggregate amount of additional Capital Contributions made to the Partnership by the Non-Defaulting Partner pursuant to this subparagraph; or (c) in lieu of the remedies set forth in subparagraph (a) or (b) above, to revoke the Funding Notice for both Membersthe Partners, whereupon any Capital unmatched Contributions paid by the nonNon-Capital Defaulting Member Partner pursuant to such Funding Notice shall be returned, with interest computed at a rate equal to the lower of 12% per annum and the highest interest rate per annum as may be permitted pursuant to applicable law, in which event the Members may Partners shall reconsider the needs of the Company Partnership for additional Capital Contributions, capital and any Member may thereafter issue any a new Funding Notice as permitted hereunder following such reconsideration; or. (cd) the Non-Defaulting Partner may structure a loan or contribution with such terms as may be required to contribute its required Capital Contribution and pursue its rights under ensure that the Parent Guaranty delivered Investor REIT will not be treated as holding a security described in Code Section 856(c)(4)(B)(iii)(III), including by structuring any such loan or Default Loan so that it complies with the Parent requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan, Default Loan or equity interest to an Affiliate of Non-Defaulting (e.g., a taxable REIT subsidiary of the Capital Investor REIT) and the Partners hereby agree to execute any documents that the Non-Defaulting Member with respect determines, in its discretion, may be reasonably required to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant give effect to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member Partner fails to make a Capital Contribution that is required under pursuant to Section 3.3(b) 3.2.2 hereof by the date such Capital Contribution contribution is due and such failure continues for ten (10) Business Days days after written notice from the Member which any other Partner who has not failed to make its Capital Contribution (any such failing Member Partner shall be a “Capital "Defaulting Member” Partner" and the amount of the failed Capital Contribution contribution shall be the “Capital "Default Amount”"), then then, such failure shall be deemed a default hereunder and in addition to its other rights and remedies set forth herein, the non-Capital Defaulting Member defaulting Partners shall have any one and only one or more of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) Partnership on behalf of, and as a loan to, to the Capital Defaulting MemberPartner, an amount equal to the Capital Default Amount Amount, to be evidenced by a promissory note in form satisfactory to the Non-Defaulting Partner (each such loan, a “Capital "Default Loan”). ") and the payee of such note shall be the "Non-Defaulting Partner." The Capital Account of the Capital Defaulting Member Partner shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member Partner to the nonNon-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)Partner. Any Capital Default Loan shall bear interest on the original principal amount thereof at a rate equal to 15the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law and shall be payable from any distributions Distributions due the Capital Defaulting Member Partner hereunder, but shall in all events be payable in full by the ninetieth (90th) day following Defaulting Partner on or before the date such Capital six (6) months after the date the Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthlyis advanced. A Capital Default Loan shall be prepayable prepayable, in whole or in part, at any time or from time to time without penalty. While Any such Default Loans shall be secured solely by the Defaulting Partner's Partnership Interest. Except as expressly provided herein, Default Loans, with interest as aforesaid, shall otherwise be without recourse to any Capital other assets of the Defaulting Partner. The Defaulting Partner hereby grants a security interest in its Partnership Interest to the Non-Defaulting Partner and the Defaulting Partner hereby irrevocably appoints the Non-Defaulting Partner, and any of its respective officers, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, instruments and agreements, including, but not limited to, any note evidencing the Default Loan and such Uniform Commercial Code Financing Statements, continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest in favor of the Non-Defaulting Partner. If the Defaulting Partner fails to pay the amount of the Default Loan when due, the Non-Defaulting Partner may exercise all rights and remedies available to a secured party under the Uniform Commercial Code. The Defaulting Partner agrees that the requirement of the Uniform Commercial Code that the Non-Defaulting Partner give the Defaulting Partner reasonable notice of any proposed sale or disposition of the Defaulting Partner's Partnership Interest shall be met if such notice is outstanding, notwithstanding anything in this Agreement given to the contrary, all Defaulting Partner at least five (5) days before the time of such sale or disposition. All distributions to the Capital Defaulting Member Partner hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of While any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior outstanding, the Partnership shall be obligated to pay directly to the date such Capital Non-Defaulting Partner, until all Default Loan becomes dueLoans have been paid in full, the non-Capital Defaulting Member amount of (or its applicable Affiliate that has funded the Capital Default Loanx) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant any distributions payable to the applicable Parent GuarantyDefaulting Partner(s), its Parent and (and if y) any proceeds of a sale that would otherwise be payable to the non-Capital Defaulting Member’s Affiliate has funded Partner(s) resulting from the Capital Default Loan, it shall be entitled to all sale of the rights Property or from the sale of the Defaulting Partner's interest in the Partnership as contemplated under this Agreement, as the case may be. In addition, the Partnership shall pay to the Non-Defaulting Partner, until all Default Loans have been paid in full, all fees or other amounts due the Defaulting Partner or any Affiliate of a non-Capital Defaulting Member Partner under this Section 3.4, including all rights to enforce Agreement or any other agreement between the Parent Guaranty as if it were Partnership or any Subsidiary on the “Creditor Member” thereunder);one hand and Defaulting Partner or any Affiliate of a Defaulting Partner on the other hand; or (b) to advance to the Partnership as an additional Capital Contribution the Default Amount whereupon the Percentage Interests of the Partners shall be recalculated as provided in this subparagraph (b), provided that Non-Defaulting Partner determines, in its sole discretion, that any additional contribution and/or adjustment to the Percentage Interests of the Partners does not violate the requirements of Code Section 514(c)(9)(E), and the Treasury Regulations thereunder or waives such requirement. After the exercise of the Non-Defaulting Partner's rights under this subparagraph (b), and provided that Non-Defaulting Partner makes the determination or waiver described in the preceding sentence, the (i) Percentage Interest of the Non-Defaulting Partner shall equal a fraction (expressed as a percentage), the numerator of which shall equal the aggregate sum of (x) all Capital Contributions made by the Non-Defaulting Partner other than the Default Amount plus (y) an amount equal to 150% of the Default Amount; and the denominator of which shall equal the aggregate sum of all contributions made by all Partners under this Agreement, including the Default Amount and (ii) the Percentage Interest of the Defaulting Partner shall equal 100% minus the Percentage Interest of the Non-Defaulting Partner after the application of this formula. As an example, if TRT LLC has made Capital Contributions of $900,000 and DCT LLC has made Capital Contributions of $100,000 and there is a Funding Notice for $200,000 and TRT LLC funds $180,000 and DCT LLC fails to fund $20,000, then if TRT LLC elects under this subparagraph to advance the Default Amount of $20,000 as an additional Capital Contribution, the Percentage Interest of TRT LLC shall equal 92.5% ($900,000+$180,000+ ($20,000x150% or $30,000)/ $1,200,000) and the Percentage Interest of DCT LLC shall equal 7.5%. For purposes of this subparagraph, if there is more than one instance of the application of the formula set forth in this subparagraph, the Default Amount shall be the aggregate amount of additional Capital Contributions made to the Partnership by the Non-Defaulting Partner pursuant to this subparagraph; or (c) in lieu of the remedies set forth in subparagraph (a) or (b) above, to revoke the Funding Notice for both Membersthe Partners, whereupon any Capital Contributions unmatched contributions paid by the nonNon-Capital Defaulting Member Partner pursuant to such Funding Notice shall be returned, with interest computed at a rate equal to the lower of 12% per annum and the highest interest rate per annum as may be permitted pursuant to applicable law, in which event the Members may Partners shall reconsider the needs of the Company Partnership for additional Capital Contributions, capital and any Member may thereafter issue any a new Funding Notice as permitted hereunder following such reconsideration; or. (cd) the Non-Defaulting Partner may structure a loan or contribution with such terms as may be required to contribute its required Capital Contribution and pursue its rights under ensure that the Parent Guaranty delivered Investor REIT will not be treated as holding a security described in Code Section 856(c)(4)(B)(iii)(III), including by structuring any such loan or Default Loan so that it complies with the Parent requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan, Default Loan or equity interest to an Affiliate of Non-Defaulting Partner (e.g., a taxable REIT subsidiary of the Capital Investor REIT) and the Partners hereby agree to execute any documents that the Non-Defaulting Member with respect Partner determines, in its discretion, may be reasonably required to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant give effect to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) this Article III by the date such Capital Contribution is due and such failure continues for ten until the later of (10i) Business Days thirty (30) days after written notice from the Member which has not failed to make its Capital Contribution or (ii) thirty (30) days after a decision is rendered in the arbitration proceedings under Section 12.3 (assuming that arbitration had been initiated as to such Contribution) (any such failing Member shall be a “Capital "Defaulting Member” " and the amount of the failed Capital Contribution contribution shall be the “Capital "Default Amount”"), then the non-Capital Defaulting defaulting Member shall have any one and only one or more of the following remediesremedies as its sole and exclusive remedies at law or in equity in connection with the applicable default; provided, however, that if the non-defaulting Member elects the remedy set forth in Subsection (a), it shall not have the right to proceed under Subsections (b) or (c) unless and until the Defaulting Member shall default in the payment of any applicable Default Loan, and provided further that if the non-Defaulting Member elects the remedy set forth in Subsection (e), it may not elect the remedies set forth in Subsections (a), (b), (c) or (d) in connection with the applicable default: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, to the Capital Defaulting Member, an amount equal to the Capital Default Amount to be evidenced by a promissory note in substantially the form attached hereto as Exhibit B (each such loan, a “Capital "Default Loan”"). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)defaulting Member. Any Capital Default Loan shall bear interest at a rate equal to 15% per annum the Default Rate and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth last day of the twelfth (90th12th) day following full month after the date making of such Capital Default Loan was madepromissory note. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Such Default Loans shall be secured solely by the Defaulting Member's interest in the Company, including, without limitation, such Defaulting Member's rights to distributions under Article V. Except as expressly provided herein, Default Loans (other than those arising out of a failure to make a Contribution pursuant to Section 3.1 which Default Loan is outstandingshall be fully recourse), notwithstanding anything with interest as aforesaid, shall otherwise be without recourse to any other assets of the Defaulting Member. The Defaulting Member hereby grants a security interest in this Agreement its interest in the Company to the contrarynon-defaulting Member and the Defaulting Member hereby irrevocably appoints the non-defaulting Member, all and any of its respective officers, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, instruments and agreements, including, but not limited to, any note evidencing the Default Loan and such Uniform Commercial Code Financing Statements, continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest in favor of the non-defaulting Member. Any Contributions contributed by the non-defaulting Member on behalf of a Defaulting Member shall be deemed to be made by the Defaulting Member except as otherwise expressly provided herein. All distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder); (b) The non-defaulting Member may elect by written notice, at least sixty (60) days prior to revoke the Funding Notice effective date of such election (within which 60-day period the Defaulting Member may cure its default), to the Defaulting Member to acquire the Defaulting Member's entire interest in the Company for both Membersa purchase price equal to the Defaulting member's Discounted Membership Value. The term "the Defaulting Member's Discounted Membership Value" shall mean ninety percent (90%) of the Appraised Fair Market Value of the Defaulting Member's Interest (determined pursuant to the procedures set forth in Section 8.2) as of the date of exercise of this remedy. Each Member acknowledges that in the circumstance of a default by the Defaulting Member, whereupon any Capital Contributions paid the Defaulting Member's Discounted Membership Value is not intended to be a penalty to the Defaulting Member, but rather a recognition that the Defaulting Member holds an illiquid interest in the Company which factors have been taken into account solely for purposes of valuing its interest in the Company under the circumstances of this Section 3.8. The closing of such acquisition shall be in accordance with the provisions of Section 8.4.4, except that the closing shall be on a date designated by notice to the Defaulting Member, which date shall be no later than sixty (60) days after the date of the exercise of such option by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returneddefaulting Member, unless on that date the Discounted Membership Value has not been finally determined, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or closing date shall not be later than ten (c10) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to days after such Capital Default Amountamount is determined. Unless the The non-Capital Defaulting defaulting Member shall have elected the right to revoke offset against the Funding Notice for both Members pursuant to Section 3.4(b), then, until either purchase price due the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of amount outstanding under any Capital Default Loan.;

Failure to Contribute Capital. If any Member The following provisions shall apply if a Partner fails to make a any Capital Contribution required under Section 3.3(b) to be made by it on the date such Capital applicable Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remediesDate: (a) to advance An additional amount shall accrue as a penalty with respect to the Company amount that such Partner (orthe "Delinquent Partner") failed to contribute (the "Unpaid Amount") at the Floating Rate from and including the Contribution Date until the Unpaid Amount and the full amount of the penalty accrued thereon (as of any date of determination, at its election, cause any of its Affiliates to advance the "Penalty") are paid as provided in this Section 2.4. (b) Upon contributing the Unpaid Amount to the Company) Partnership, if the other Partner made its Capital Contribution in full on behalf of, or before the applicable Contribution Date and as a loan tohas cured any prior failure to make any required Capital Contribution on the Contribution Date applicable thereto, the Capital Defaulting Member, an amount equal Delinquent Partner shall pay (i) to the Capital Default Amount other Partner the lesser of (each such loan, a “Capital Default Loan”). The Capital Account of A) the Capital Defaulting Member shall be credited with Penalty or (B) the amount of such interest that would have accrued at the Floating Rate on the Capital Default LoanContribution made by the other Partner on the applicable Contribution Date from the Contribution Date to the date the Delinquent Partner pays the Unpaid Amount to the Partnership, and (ii) to the Partnership the amount, if any, by which the Penalty exceeds the amount paid to the other Partner pursuant to clause (i). Any portion of the Penalty paid to the Partnership shall be deemed to be a Capital Contribution made "Special Contribution" by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member Delinquent Partner to the non-Capital Defaulting Member (or its applicable Affiliate that has funded capital of the Capital Default Loan)Partnership. Any portion of the Penalty paid to the other Partner shall not, for any purpose, be deemed to be a Capital Default Loan shall bear interest at Contribution. (c) Subject to the last two sentences of Section 2.6(b), the term "Floating Rate" means the rate per annum (computed on the basis of the actual number of days elapsed in a rate year of 365 or 366 days, as applicable), compounded monthly, equal to 15% per annum the greater of (i) the Prime Rate (adjusted as and shall be payable from any distributions due when changes in the Capital Defaulting Member hereunder, but shall in all events be payable in full by Prime Rate occur) plus (x) during the ninetieth period ending at the close of business on the tenth (90th10th) day following the date such Capital Default Loan was made. Interest on applicable Contribution Date, two percent (2%) and (y) thereafter, five percent (5%), and (ii) the rate per annum applicable to borrowings by the Partnership under its principal credit facility, if any, or, if a Capital Default Loan choice of rates is then available to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes duePartnership, the non-Capital Defaulting Member highest such rate (or its in either case adjusted as and when changes in such applicable Affiliate that has funded rate occur) plus, following the Capital Default Loanclose of business on the tenth (10th) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to day following the applicable Parent GuarantyContribution Date, its Parent two percent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder2%); (b) to revoke the Funding Notice for both Members, whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If Subject to the provisions of Section 3.10, if any Member fails to make a Capital Contribution required under Section 3.3(b) this Article III by the date such Capital Contribution is due and such failure continues for ten (10) Business Days days after written notice from the any Member which who has not failed to make its Capital Contribution (any such failing Member shall be a “Capital "Defaulting Member” " and the amount of the failed Capital Contribution contribution shall be the “Capital "Default Amount”"), then then, in addition to its other rights and remedies set forth herein, or otherwise provided by law, the non-Capital Defaulting nondefaulting Member shall have any one and only one or more of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, to the Capital Defaulting Member, an amount equal to the Capital Default Amount to be evidenced by a promissory note in substantially the form attached hereto as EXHIBIT D (each such loan, a “Capital "Default Loan”"). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)nondefaulting Member. Any Capital Default Loan shall bear interest at a the Default Rate (but in no event in excess of the highest rate equal to 15% per annum permitted by applicable law) and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth Defaulting Member on or before the earlier of (90thi) day following December 31, 2010 and (ii) the date such Capital Default Loan was madetransfer of the entire interest of a Member in the Company to the other Member. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable prepayable, in whole or in part, at any time or from time to time without penalty. While Any such Default Loans shall be secured solely by the Defaulting Member's interest in the Company, including, without limitation, such Defaulting Member's rights to distributions under Article V. Except as expressly provided herein, Default Loans, with interest as aforesaid, shall otherwise be without recourse to any Capital other assets of the Defaulting Member. The Defaulting Member hereby grants a security interest in its interest in the Company to the nondefaulting Member and the Defaulting Member hereby irrevocably appoints the nondefaulting Member, and any of its respective officers, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, instruments and agreements, including, but not limited to, any note evidencing the Default Loan is outstandingand such Uniform Commercial Code Financing Statements, notwithstanding anything continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest in this Agreement favor of the nondefaulting Member. Any Contributions contributed by the nondefaulting Member on behalf of a Defaulting Member shall be deemed to be made by the contrary, all Defaulting Member except as otherwise expressly provided herein. All distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of While any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior outstanding, the Company shall be obligated to pay directly to the date such Capital nondefaulting Member, until all Default Loan becomes dueLoans have been paid in full, the non-Capital amount of (x) any distributions payable to the Defaulting Member, and (y) any proceeds of a sale that would otherwise be payable to the Defaulting Member (resulting from the sale of a Target Asset as contemplated by Section 8.2 or its applicable Affiliate that has funded from the Capital Default Loan) may pursue all available rights and remedies against sale of the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded 's interest in the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Company as contemplated by Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder);8.4; or (b) to advance to the Company as an additional Contribution the Default Amount whereupon the Proportionate Shares of the Members shall be recalculated as provided in this subparagraph (b). After the exercise of a Member's rights under this subparagraph (b), each Member's Proportionate Share shall equal a fraction (expressed as a percentage), the numerator of which shall equal the aggregate sum of all Contributions made by the Member under this Agreement and the denominator of which shall equal the aggregate sum of all Contributions made by all Members under this Agreement; or (c) in lieu of the remedies set forth in subparagraphs (a) or (b) above, to revoke the Funding Notice for both Members, whereupon any Capital unmatched Contributions paid by the non-Capital Defaulting nondefaulting Member pursuant to such Funding Notice shall be returned, with interest computed at the Interest Rate, in which event the Members may nondefaulting Member shall reconsider the needs of the Company for additional Capital Contributions, capital and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member The following provisions shall apply if a Partner fails to make a any Capital Contribution required under Section 3.3(b) to be made by it on the date such Capital applicable Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remediesDate: (a) to advance An additional amount shall accrue as a penalty with respect to the Company amount that such Partner (orthe "Delinquent Partner") failed to contribute (the "Unpaid Amount") at the Floating Rate from and including the Contribution Date until the Unpaid Amount and the full amount of the penalty accrued thereon (as of any date of determination, at its election, cause any of its Affiliates to advance the "Penalty") are paid as provided in this Section 2.4. (b) Upon contributing the Unpaid Amount to the Company) Partnership, if the other Partner made its Capital Contribution in full on behalf of, or before the applicable Contribution Date and as a loan tohas cured any prior failure to make any required Capital Contribution on the Contribution Date applicable thereto, the Capital Defaulting Member, an amount equal Delinquent Partner shall pay (i) to the Capital Default Amount other Partner the lesser of (each such loan, a “Capital Default Loan”). The Capital Account of A) the Capital Defaulting Member shall be credited with Penalty or (B) the amount of such Capital Default Loan, which shall be deemed to be a interest that would have accrued at the Floating Rate on the Capital Contribution made by the Capital Defaulting Memberother Partner on the applicable Contribution Date from the Contribution Date to the date the Delinquent Partner pays the Unpaid Amount to the Partnership, and such amount shall constitute a debt owed by the Capital Defaulting Member (ii) to the non-Capital Defaulting Member Partnership the amount, if any, by which the Penalty exceeds the amount paid to (c) Subject to the last two sentences of Section 2.6(b), the term "Floating Rate" means the rate per annum (computed on the basis of the actual number of days elapsed in a year of 365 or its applicable Affiliate that has funded the Capital Default Loan366 days, as applicable). Any Capital Default Loan shall bear interest at a rate , compounded monthly, equal to 15% per annum the greater of (i) the Prime Rate (adjusted as and shall be payable from any distributions due when changes in the Capital Defaulting Member hereunder, but shall in all events be payable in full by Prime Rate occur) plus (x) during the ninetieth period ending at the close of business on the tenth (90th10th) day following the date such Capital Default Loan was made. Interest on applicable Contribution Date, two percent (2%) and (y) thereafter, five percent (5%), and (ii) the rate per annum applicable to borrowings by the Partnership under its principal credit facility, if any, or, if a Capital Default Loan choice of rates is then available to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes duePartnership, the non-Capital Defaulting Member highest such rate (or its in either case adjusted as and when changes in such applicable Affiliate that has funded rate occur) plus, following the Capital Default Loanclose of business on the tenth (10th) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to day following the applicable Parent GuarantyContribution Date, its Parent two percent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder2%); (b) to revoke the Funding Notice for both Members, whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute its required Capital Contribution and pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) by the date such Capital Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remedies: (a) to advance or to the Company (orallow, at its electionfor REIT compliance or other purposes, cause any one of its Affiliates to advance advance, to the Company) Company on behalf of, and as a loan to, the Capital Defaulting Member, an amount equal to the Capital Default Amount (each such loan, a “Capital Default Loan”). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or or, if applicable, its applicable Affiliate that has funded the Capital Default LoanAffiliate). Any Capital Default Loan shall bear interest at a rate equal to fifteen (15% %) per annum and shall be payable from any distributions due to the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth (90th) day following the date such Capital Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, if applicable, pursuant to the applicable Parent Guaranty, its Parent (and if the non-Capital Defaulting Member’s Affiliate has funded the Capital Default Loan, it shall be entitled to all of the rights of a non-Capital Defaulting Member under this Section 3.4, including all rights to enforce the Parent Guaranty as if it were the “Creditor Member” thereunder)Parent; (b) to revoke the Funding Notice for both MembersMembers (if there has been a Funding Notice for both Members with respect to the applicable Capital Default Amount), whereupon any Capital Contributions paid by the non-Capital Defaulting Member pursuant to such Funding Notice shall be returned, in which event the Members may reconsider the needs of the Company for additional Capital Contributions, and any Member may thereafter issue any Funding Notice as permitted hereunder following such reconsideration; or (c) to contribute make its required Capital Contribution and and, if applicable, pursue its rights under the Parent Guaranty delivered by the Parent of the Capital Defaulting Member with respect to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b) (if applicable), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or or, if applicable, its Parent pursuant to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunderas a Member or as a Management Committee Representative (other than voting or approval rights with respect to any action, decision or transaction, to be taken, made or entered into with respect to the Member Units, which will continue to be exercised solely by the Management Committee Representatives appointed by the Member affiliated with the issuer of the Member Units pursuant to Section 4.1(e)(ii) except as provided in Section 4.3(i)), but the other Member shall continue to act in good faith in the interest of the Company and shall not unilaterally take any action that is inconsistent with the business purposes of the Company. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or or, if applicable, its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made with respect to the Company without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.

Failure to Contribute Capital. If any Member Partner fails to make a Capital Contribution that is required under pursuant to Section 3.3(b) 3.2.2 hereof by the date such Capital Contribution contribution is due and such failure continues for ten (10) Business Days days after written notice from the Member which any other Partner who has not failed to make its Capital Contribution (any such failing Member Partner shall be a “Capital Defaulting MemberPartner” and the amount of the failed Capital Contribution contribution shall be the “Capital Default Amount”), then then, such failure shall be deemed a default hereunder and in addition to its other rights and remedies set forth herein, the non-Capital Defaulting Member defaulting Partners shall have any one and only one or more of the following remedies: (a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) Partnership on behalf of, and as a loan to, to the Capital Defaulting MemberPartner, an amount equal to the Capital Default Amount Amount, to be evidenced by a promissory note in form satisfactory to the Non-Defaulting Partner (each such loan, a “Capital Default Loan”). ) and the payee of such note shall be the “Non-Defaulting Partner.” The Capital Account of the Capital Defaulting Member Partner shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member Partner to the nonNon-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan)Partner. Any Capital Default Loan shall bear interest on the original principal amount thereof at a rate equal to 15the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law and shall be payable from any distributions Distributions due the Capital Defaulting Member Partner hereunder, but shall in all events be payable in full by the ninetieth (90th) day following Defaulting Partner on or before the date such Capital six (6) months after the date the Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthlyis advanced. A Capital Default Loan shall be prepayable prepayable, in whole or in part, at any time or from time to time without penalty. While Any such Default Loans shall be secured solely by the Defaulting Partner’s Partnership Interest. Except as expressly provided herein, Default Loans, with interest as aforesaid, shall otherwise be without recourse to any Capital other assets of the Defaulting Partner. The Defaulting Partner hereby grants a security interest in its Partnership Interest to the Non-Defaulting Partner and the Defaulting Partner hereby irrevocably appoints the Non-Defaulting Partner, and any of its respective officers, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, instruments and agreements, including, but not limited to, any note evidencing the Default Loan and such Uniform Commercial Code Financing Statements, continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest in favor of the Non-Defaulting Partner. If the Defaulting Partner fails to pay the amount of the Default Loan when due, the Non-Defaulting Partner may exercise all rights and remedies available to a secured party under the Uniform Commercial Code. The Defaulting Partner agrees that the requirement of the Uniform Commercial Code that the Non-Defaulting Partner give the Defaulting Partner reasonable notice of any proposed sale or disposition of the Defaulting Partner’s Partnership Interest shall be met if such notice is outstanding, notwithstanding anything in this Agreement given to the contrary, all Defaulting Partner at least five (5) days before the time of such sale or disposition. All distributions to the Capital Defaulting Member Partner hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of While any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior outstanding, the Partnership shall be obligated to pay directly to the date such Capital Non-Defaulting Partner, until all Default Loan becomes dueLoans have been paid in full, the non-Capital Defaulting Member amount of (or its applicable Affiliate that has funded the Capital Default Loanx) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant any distributions payable to the applicable Parent GuarantyDefaulting Partner(s), its Parent and (and if y) any proceeds of a sale that would otherwise be payable to the non-Capital Defaulting Member’s Affiliate has funded Partner(s) resulting from the Capital Default Loan, it shall be entitled to all sale of the rights Property or from the sale of the Defaulting Partner’s interest in the Partnership as contemplated under this Agreement, as the case may be. In addition, the Partnership shall pay to the Non-Defaulting Partner, until all Default Loans have been paid in full, all fees or other amounts due the Defaulting Partner or any Affiliate of a non-Capital Defaulting Member Partner under this Section 3.4, including all rights to enforce Agreement or any other agreement between the Parent Guaranty as if it were Partnership or any Subsidiary on the “Creditor Member” thereunder);one hand and Defaulting Partner or any Affiliate of a Defaulting Partner on the other hand; or (b) to advance to the Partnership as an additional Capital Contribution the Default Amount whereupon the Percentage Interests of the Partners shall be recalculated as provided in this subparagraph (b), provided that Non-Defaulting Partner determines, in its sole discretion, that any additional contribution and/or adjustment to the Percentage Interests of the Partners does not violate the requirements of Code Section 514(c)(9)(E), and the Treasury Regulations thereunder or waives such requirement. After the exercise of the Non-Defaulting Partner’s rights under this subparagraph (b), and provided that Non-Defaulting Partner makes the determination or waiver described in the preceding sentence, the (i) Percentage Interest of the Non-Defaulting Partner shall equal a fraction (expressed as a percentage), the numerator of which shall equal the aggregate sum of (x) all Capital Contributions made by the Non-Defaulting Partner other than the Default Amount plus (y) an amount equal to 150% of the Default Amount; and the denominator of which shall equal the aggregate sum of all contributions made by all Partners under this Agreement, including the Default Amount and (ii) the Percentage Interest of the Defaulting Partner shall equal 100% minus the Percentage Interest of the Non-Defaulting Partner after the application of this formula. As an example, if TRT LLC has made Capital Contributions of $900,000 and DCT LLC has made Capital Contributions of $100,000 and there is a Funding Notice for $200,000 and TRT LLC funds $180,000 and DCT LLC fails to fund $20,000, then if TRT LLC elects under this subparagraph to advance the Default Amount of $20,000 as an additional Capital Contribution, the Percentage Interest of TRT LLC shall equal 92.5% ($900,000+$180,000+ ($20,000x150% or $30,000)/ $1,200,000) and the Percentage Interest of DCT LLC shall equal 7.5%. For purposes of this subparagraph, if there is more than one instance of the application of the formula set forth in this subparagraph, the Default Amount shall be the aggregate amount of additional Capital Contributions made to the Partnership by the Non-Defaulting Partner pursuant to this subparagraph; or (c) in lieu of the remedies set forth in subparagraph (a) or (b) above, to revoke the Funding Notice for both Membersthe Partners, whereupon any Capital Contributions unmatched contributions paid by the nonNon-Capital Defaulting Member Partner pursuant to such Funding Notice shall be returned, with interest computed at a rate equal to the lower of 12% per annum and the highest interest rate per annum as may be permitted pursuant to applicable law, in which event the Members may Partners shall reconsider the needs of the Company Partnership for additional Capital Contributions, capital and any Member may thereafter issue any a new Funding Notice as permitted hereunder following such reconsideration; or. (cd) the Non-Defaulting Partner may structure a loan or contribution with such terms as may be required to contribute its required Capital Contribution and pursue its rights under ensure that the Parent Guaranty delivered Investor REIT will not be treated as holding a security described in Code Section 856(c)(4)(B)(iii)(III), including by structuring any such loan or Default Loan so that it complies with the Parent requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan, Default Loan or equity interest to an Affiliate of Non-Defaulting Partner (e.g., a taxable REIT subsidiary of the Capital Investor REIT) and the Partners hereby agree to execute any documents that the Non-Defaulting Member with respect Partner determines, in its discretion, may be reasonably required to such Capital Default Amount. Unless the non-Capital Defaulting Member shall have elected to revoke the Funding Notice for both Members pursuant to Section 3.4(b), then, until either the Capital Default Loan made by the non-Capital Defaulting Member shall have been repaid in full or the amounts due with respect to such Capital Contribution have been funded by the Capital Defaulting Member or its Parent pursuant give effect to the Parent Guaranty, the Capital Defaulting Member and the Management Committee Representatives appointed by it shall have no voting or approval rights hereunder. Such voting and approval rights shall be restored in the event that the Capital Defaulting Member (or its Parent, pursuant to its Parent Guaranty) repays the Capital Default Loan in accordance with the terms of this Agreement, but the Capital Defaulting Member and the Management Committee Representatives appointed by it shall be bound by all decisions that were made without its or their approval while the Capital Default Loan was outstanding. Notwithstanding the foregoing, under no circumstances shall the non-Capital Defaulting Member or the Management Committee Representatives appointed by it have any authority, without the written consent of the Capital Defaulting Member or, as applicable, the Management Committee Representatives appointed by it, to cause the Company to incur on behalf of the Company any indebtedness which includes any recourse obligations of any Member, to engage in any transaction with any Affiliate of the non-Capital Defaulting Member, or to amend this Agreement, nor shall the Capital Defaulting Member forfeit any of its rights to receive distributions, to receive reports or obtain information as a result of the making of any Capital Default Loan.