Common use of Preservation Capital Clause in Contracts

Preservation Capital. If, at any time after the Partners have contributed all of the Capital Contributions required pursuant to Section 3.2.2 hereof, either DCT LLC or any Partner reasonably and in good faith determines (after taking into account any existing cash reserves of the Partnership) that the Partnership requires additional capital to fund the payment of debt service obligations (if approved as set forth below), real estate taxes, utility costs, insurance premiums, and/or other costs and expenses reasonably necessary to protect and preserve the value of the Property or the safekeeping, health and welfare of occupants or invitees thereof (all such costs, collectively “Preservation Costs”), such Partner shall have the right to issue a Funding Notice to the Partners setting forth the amount needed to pay such Preservation Costs and each Partner’s respective share of such Preservation Costs to be funded. Within five (5) Business Days after receipt of such notice or such longer time as the Funding Notice may permit, each such Partner shall have the option, but not the obligation, of advancing to the Partnership such Partner’s respective share of the Preservation Costs on the terms set forth in the Funding Notice. If all Partners elect to make such Capital Contributions, such Capital Contributions shall constitute additional Capital Contributions to the Partnership by such Partners. If any Partner fails to make such Capital Contribution under this Section, then the non-failing Partner shall elect either (a) to receive the return of any unmatched funds paid to the Partnership under this Section with interest computed at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law, and/or (b) to convert any unmatched funds paid to the Partnership under this Section to a loan to the Partnership and in addition, such Partner shall have the right to make an additional loan to the Partnership in the amount that the failing Partner failed to contribute and/or (c) the non-failing Partner may structure a loan or contribution with such terms as may be required to ensure that no direct or indirect investor in such Partner that is a real estate investment trust under the Code (the “Investor REIT”) will be treated as holding a security described in Code Section 856(c)(4)(B)(iii)(III), including by structuring any such loan so that it complies with the requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan or equity interest to an Affiliate of such Partner (e.g., a taxable REIT subsidiary of the Investor REIT) and the Partners hereby agrees to execute any documents that non-failing Partner determines, in its discretion, may be reasonably required to give effect to the foregoing. Any such loan or loans made by a Partner shall be deemed a “Partnership Loan.” All Partnership Loans shall bear interest on the original principal amount thereof at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law. All Partnership Loans shall be repaid in full prior to any distributions to the Partners. If more than one Partner has made a Partnership Loan, then repayment of all Partnership Loans shall be made to the Partners in proportion to the outstanding amount due each Partner under all Partnership Loans.

Preservation Capital. If, at any time after the Partners have contributed all of the Capital Contributions required pursuant to Section 3.2.2 hereof, either DCT LLC or any Partner reasonably and in good faith determines (after taking into account any existing cash reserves of the Partnership) that the Partnership requires additional capital to fund the payment of debt service obligations (if approved as set forth below), real estate taxes, utility costs, insurance premiums, and/or other costs and expenses reasonably necessary to protect and preserve the value of the Property or the safekeeping, health and welfare of occupants or invitees thereof (all such costs, collectively “"Preservation Costs”"), such Partner shall have the right to issue a Funding Notice to the Partners setting forth the amount needed to pay such Preservation Costs and each Partner’s 's respective share of such Preservation Costs to be funded. Within five (5) Business Days after receipt of such notice or such longer time as the Funding Notice may permit, each such Partner shall have the option, but not the obligation, of advancing to the Partnership such Partner’s 's respective share of the Preservation Costs on the terms set forth in the Funding Notice. If all Partners elect to make such Capital Contributions, such Capital Contributions shall constitute additional Capital Contributions to the Partnership by such Partners. If any Partner fails to make such Capital Contribution under this Section, then the non-failing Partner shall elect either (a) to receive the return of any unmatched funds paid to the Partnership under this Section with interest computed at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law, and/or (b) to convert any unmatched funds paid to the Partnership under this Section to a loan to the Partnership and in addition, such Partner shall have the right to make an additional loan to the Partnership in the amount that the failing Partner failed to contribute and/or (c) the non-failing Partner may structure a loan or contribution with such terms as may be required to ensure that no direct or indirect investor in such Partner that is a real estate investment trust under the Code (the “"Investor REIT”") will be treated as holding a security described in Code Section 856(c)(4)(B)(iii)(III), including by structuring any such loan so that it complies with the requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan or equity interest to an Affiliate of such Partner (e.g., a taxable REIT subsidiary of the Investor REIT) and the Partners hereby agrees to execute any documents that non-failing Partner determines, in its discretion, may be reasonably required to give effect to the foregoing. Any such loan or loans made by a Partner shall be deemed a “"Partnership Loan.” " All Partnership Loans shall bear interest on the original principal amount thereof at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law. All Partnership Loans shall be repaid in full prior to any distributions to the Partners. If more than one Partner has made a Partnership Loan, then repayment of all Partnership Loans shall be made to the Partners in proportion to the outstanding amount due each Partner under all Partnership Loans.

Preservation Capital. If, at any time after the Partners have contributed all of the Capital Contributions required pursuant to Section 3.2.2 hereofSections 5.1 and 5.3, either DCT LLC or any Partner reasonably and in good faith determines (after taking into account any existing cash reserves of the PartnershipPartnership or the Subsidiaries) that the Partnership requires or the Subsidiaries require additional capital Capital Contributions to fund the payment of debt service obligations (if approved as set forth below)obligations, real estate taxes, utility costs, insurance premiums, other contractual obligations of the Partnership or the Subsidiaries or other costs set forth in an approved Annual Plan and Budget and/or other costs and or expenses reasonably necessary to protect and preserve the value of the Property or the safekeeping, health and welfare of occupants or invitees thereof (all such costs, collectively “"Preservation Costs”"), such Partner shall have the right to issue a Funding Notice to request in writing that the Partners setting forth make further Capital Contributions in the amount needed to pay such Preservation Costs and Costs. If so requested, each Partner’s Partner will have the right (but not the obligation) to fund its pro rata share (based on its respective share Percentage Interests) of such Preservation Costs to be funded. Within Costs, within five (5) Business Days after receipt of such notice or request. The failure by a Partner to make any Capital Contribution requested under this Section 5.4 for Preservation Costs shall not constitute a default by such longer time as Partner under this Agreement, and shall not constitute a basis for "cause" under Section 7.7. In the Funding Notice may permitevent of a failure by any Partner to contribute its pro rata share of any Preservation Costs required by this Section, each such then, provided the other Partner shall have made its corresponding Capital Contribution in respect of such Preservation Costs, the option, but not the obligation, of advancing to the Partnership such Partner’s respective Partner that contributed its pro rata share of the such Preservation Costs on shall have as its sole and exclusive remedy all the terms set forth in the Funding Notice. If all Partners elect remedies available to make such Capital Contributions, such Capital Contributions shall constitute additional Capital Contributions to the Partnership by such Partners. If any Partner fails to make such Capital Contribution under this Section, then the a non-failing defaulting Partner under Section 5.5, and the Partner not contributing its pro rata share of such Preservation Coses shall elect either (a) to receive the return of any unmatched funds paid to the Partnership under this Section with interest computed at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law, and/or (b) to convert any unmatched funds paid to the Partnership under this Section to a loan to the Partnership and in addition, such Partner shall have the right to make an additional loan to the Partnership in the amount that the failing Partner failed to contribute and/or (c) the non-failing Partner may structure a loan or contribution with such terms as may be required to ensure that no direct or indirect investor in such Partner that is a real estate investment trust under the Code (the “Investor REIT”) will be treated as holding a security described in Code the Non-Contributing Partner for the purposes of Section 856(c)(4)(B)(iii)(III), including by structuring any such loan so that it complies with the requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan or equity interest to an Affiliate of such Partner (e.g., a taxable REIT subsidiary of the Investor REIT) and the Partners hereby agrees to execute any documents that non-failing Partner determines, in its discretion, may be reasonably required to give effect to the foregoing. Any such loan or loans made by a Partner shall be deemed a “Partnership Loan5.5.” All Partnership Loans shall bear interest on the original principal amount thereof at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law. All Partnership Loans shall be repaid in full prior to any distributions to the Partners. If more than one Partner has made a Partnership Loan, then repayment of all Partnership Loans shall be made to the Partners in proportion to the outstanding amount due each Partner under all Partnership Loans.

Preservation Capital. If, at any time after the Partners have contributed all of the Capital Contributions required pursuant to Section 3.2.2 hereofSections ‎5.1 and 5.3, either DCT LLC or any Partner reasonably and in good faith determines (after taking into account any existing cash reserves of the PartnershipPartnership or the Subsidiaries) that the Partnership requires or the Subsidiaries require additional capital Capital Contributions to fund the payment of debt service obligations (if approved as set forth below)obligations, real estate taxes, utility costs, insurance premiums, other contractual obligations of the Partnership or the Subsidiaries or other costs set forth in an approved Annual Plan and Budget and/or other costs and or expenses reasonably necessary to protect and preserve the value of the Property or the safekeeping, health and welfare of occupants or invitees thereof (all such costs, collectively “Preservation Costs”), such Partner shall have the right to issue a Funding Notice to request in writing that the Partners setting forth make further Capital Contributions in the amount needed to pay such Preservation Costs and Costs. If so requested, each Partner’s Partner will have the right (but not the obligation) to fund its pro rata share (based on its respective share Percentage Interests) of such Preservation Costs to be funded. Within Costs, within five (5) Business Days after receipt of such notice or request. The failure by a Partner to make any Capital Contribution requested under this Section 5.4 for Preservation Costs shall not constitute a default by such longer time as Partner under this Agreement, and shall not constitute a basis for “cause” under Section 7.7. In the Funding Notice may permitevent of a failure by any Partner to contribute its pro rata share of any Preservation Costs required by this Section, each such then, provided the other Partner shall have made its corresponding Capital Contribution in respect of such Preservation Costs, the option, but not the obligation, of advancing to the Partnership such Partner’s respective Partner that contributed its pro rata share of the such Preservation Costs on shall have as its sole and exclusive remedy all the terms set forth in the Funding Notice. If all Partners elect remedies available to make such Capital Contributions, such Capital Contributions shall constitute additional Capital Contributions to the Partnership by such Partners. If any Partner fails to make such Capital Contribution under this Section, then the a non-failing defaulting Partner under Section 5.5, and the Partner not contributing its pro rata share of such Preservation Coses shall elect either (a) to receive the return of any unmatched funds paid to the Partnership under this Section with interest computed at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law, and/or (b) to convert any unmatched funds paid to the Partnership under this Section to a loan to the Partnership and in addition, such Partner shall have the right to make an additional loan to the Partnership in the amount that the failing Partner failed to contribute and/or (c) the non-failing Partner may structure a loan or contribution with such terms as may be required to ensure that no direct or indirect investor in such Partner that is a real estate investment trust under the Code (the “Investor REIT”) will be treated as holding a security described in Code the Non-Contributing Partner for the purposes of Section 856(c)(4)(B)(iii)(III), including by structuring any such loan so that it complies with the requirements of Revenue Procedure 2003-65, I.R.B. 2003-32, and/or may transfer any such loan or equity interest to an Affiliate of such Partner (e.g., a taxable REIT subsidiary of the Investor REIT) and the Partners hereby agrees to execute any documents that non-failing Partner determines, in its discretion, may be reasonably required to give effect to the foregoing. Any such loan or loans made by a Partner shall be deemed a “Partnership Loan5.5.” All Partnership Loans shall bear interest on the original principal amount thereof at a rate equal to the lower of 12% per annum or the highest rate per annum as may be permitted pursuant to applicable law. All Partnership Loans shall be repaid in full prior to any distributions to the Partners. If more than one Partner has made a Partnership Loan, then repayment of all Partnership Loans shall be made to the Partners in proportion to the outstanding amount due each Partner under all Partnership Loans.