Ex-4.7



 





EXHIBIT 4.7


FIRST AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT OF EDUCATION REALTY LIMITED PARTNER LLC




     This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of Education Realty
Limited Partner LLC, a Delaware limited liability company (the “Company”), is made and
entered into as of January 1, 2006 (the “Effective Date”) by and among Education Realty OP
GP, Inc., a Delaware corporation as manager (the “Manager”), and each of the Members listed
on the books and records of the Company from time to time.



RECITALS:




     WHEREAS, the Company was formed under the Act pursuant to a Certificate of Formation filed
with the Secretary of State of the State of Delaware;



     WHEREAS, Education Realty Trust, Inc., a Maryland corporation (“EDR”), is an entity
that has elected to be taxed as a real estate investment trust under the Code;



     WHEREAS, EDR holds and will continue to hold substantially all of its properties through its
operating partnership, Education Realty Operating Partnership, L.P., a Delaware limited partnership
(the “Partnership”);



     WHEREAS, EDR has granted, and desires to grant in the future, to certain of its employees,
consultants and key persons, a profits interest in the Partnership and to permit such persons to
receive distributions from the Partnership as if such persons were limited partners of the
Partnership and, under certain circumstances, to redeem their interests in the Company for cash or
common shares of EDR.;



     WHEREAS, on January 28, 2005 the Limited Liability Company Agreement of the Company was
executed and delivered by the Manager and other parties thereto;



     WHEREAS, pursuant to the Agreement, the Manager has the right to amend and restate this
Agreement in accordance with the terms of Section 11.2 hereof, and hereby desires to amend and
restate this Agreement as follows:



     NOW, THEREFORE, the parties hereto hereby agree to continue the Company, amend and restate
this Agreement and hereby agree as follows:



ARTICLE I




GENERAL PROVISIONS




     1.1 Definitions. As used herein the following terms have the meanings set forth
below:



     “Act” shall mean the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et
seq., as amended, and any successor to such statute.



     “Additional Member” shall have the meaning set forth in Section 9.1.



 









 





     “Affiliate” shall mean, with respect to any specified Person, a Person that directly
or indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, the Person specified.



     “Agreement” shall mean this Limited Liability Company Agreement as amended,
supplemented or restated from time to time.



     “Associated Partnership Units” shall have the meaning set forth in Section 6.4(b).



     “Available Assets” shall mean as of any date, the excess of (a) the Cash Flow and
Disposition Proceeds, over (b) the sum of the amount of such items as the Manager determines to be
necessary for the payment of the Company Expenses and all other liabilities and other obligations
(whether fixed or contingent) of the Company, and for the establishment of appropriate reserves for
such expenses, liabilities and obligations as may arise.



     “Business Day” shall mean any day other than (a) Saturday and Sunday and (b) any other
day on which banks located in Memphis, Tennessee are required or authorized by law to remain
closed.



     “Capital Account” shall have the meaning set forth in Section 5.3.



     “Capital Contribution” shall mean, with respect to any Member, the amount of capital
contributed by such Member to the Company pursuant to this Agreement.



     “Capital Transaction” shall have the meaning ascribed to the term “Capital
Transaction” in the Partnership Agreement.



     “Cash Amount” means an amount of cash per Unit equal to the Value on the Valuation
Date of the REIT Common Shares Amount.



     “Cash Flow” shall mean (a) any cash proceeds or other property distributed by the
Partnership that originate as “Cash Flow,” as defined in the Partnership Agreement, that are
ultimately distributed to the Company and (b) any other cash or other property (other than
Disposition Proceeds or cash or REIT Common Shares received from the Partnership or an Affiliate of
the Partnership in order to pay amounts due to a Redeeming Member under Section 6.4) that are
received or held by the Company.



     “Certificate” shall have the meaning set forth in Section 1.2(c).



     “Claims” shall have the meaning set forth in Section 4.3(a).



     “Code” shall mean the U.S. Internal Revenue Code of 1986, as amended from time to
time.



     “Company” shall have the meaning set forth in the preamble hereto.



     “Conversion Factor” shall have the meaning ascribed to such term in the Partnership
Agreement.



     “Covered Person” shall mean -




     (a) the Manager, any Member, and each of their respective successors in interest;



     (b) any Person that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with any Person in clause (a);



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     (c) any officers, directors, shareholders, controlling Persons, partners, members, employees,
representatives or agents of any such Person in clause (a) or (b) or their respective Affiliates;



     (d) any officer, employee or agent of any such person in clause (c); or



     (e) any Person who was, at the time of the act or omission in question, any of the foregoing
Persons.



     “Damages” shall have the meaning set forth in Section 4.3(a).



     “Disposition Proceeds” shall mean any cash proceeds or other property distributed by
the Partnership that originate as “Disposition Proceeds,” as defined in the Partnership Agreement,
that are ultimately distributed to the Company.



     “EDR” shall have the meaning set forth in the Recitals.



     “Entity” shall mean any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or association or any
foreign trust or foreign business organization.



     “Fiscal Year” shall mean the fiscal year of the Company, as determined pursuant to
Section 1.5.



     “Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as
amended, and all rules, rulings and regulations thereunder.



     “Manager” shall mean Education Realty OP GP, Inc., a Delaware corporation, or such
other Person(s) who shall from time to time be so designated accordance with the terms of this
Agreement.



     “Member” shall mean each Person listed as a Member on the books and records of the
Company from time to time, in his or her capacity as a member of the Company.



     “Notice of Redemption” shall mean the Notice of Exercise of Redemption Right
substantially in the form attached as Exhibit A attached hereto.



     “Partnership” shall have the meaning set forth in the Recitals.



     “Partnership Agreement” shall mean the Amended and Restated Agreement of Limited
Partnership of the Partnership, as such agreement may be amended, restated and supplemented from
time to time.



     “Partnership Unit” is a “Common Partnership Unit,” as defined in the Partnership
Agreement, held by the Company.



     “Person” shall mean any individual or entity, including a corporation, partnership,
association, limited liability company, limited liability partnership, joint-stock company, trust,
unincorporated association, government or governmental agency or authority.



     “Proceeding” shall have the meaning set forth in Section 4.3(a).



     “Redeeming Member” shall have the meaning set forth in Section 6.4(a).



     “Redemption Right” shall have the meaning set forth in Section 6.4(a).



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     “REIT Common Share” shall mean a share of the common shares of the REIT.



     “REIT Common Shares Amount” shall mean a whole number of REIT Common Shares equal to
the product of (i) the number of Units offered for redemption by a Member; multiplied by (ii) the
quotient of such Member’s Capital Account balance as of the Specified Redemption Date (such Capital
Account being adjusted as of the Specified Redemption Date through an interim closing of the
Partnership’s books to reflect all income and loss allocable to such Member through the Specified
Redemption Date, including an allocation of all income and loss to the Company from the Partnership
from an interim closing of the books of the Partnership as of the Specified Redemption Date)
divided by the product of the number of Units held by such Member immediately prior to such
redemption multiplied by the Value of one REIT Common Share as of the Valuation Date; multiplied by
(iii) the Conversion Factor in effect on the Specified Redemption Date (rounded down to the nearest
whole number in the event such product is not a whole number). Notwithstanding the foregoing, in
the event EDR at any time issues to all holders of REIT Common Shares rights, options, warrants or
convertible or exchangeable securities entitling the shareholders to subscribe for or purchase REIT
Common Shares, or any other securities or property (collectively, the “Rights”), which
Rights have not expired pursuant to their terms, then the REIT Common Shares Amount thereafter
shall also include such Rights that a holder of that number of REIT Common Shares would be entitled
to receive.



     “Securities Act” shall mean the U.S. Securities Act of 1933, as amended, and all
rules, rulings and regulations thereunder.



     “Specified Redemption Date shall mean with respect to a given Member, the “Specified
Redemption Date,” as such term is defined in the Partnership Agreement, with respect to the
applicable Associated Partnership Units.



     “Transfer” shall mean any sale, assignment, conveyance, pledge, mortgage, encumbrance,
hypothecation or other disposition, or the act of so doing, as the context requires.



     “Treasury Regulations” shall mean the regulations of the U.S. Treasury Department
issued pursuant to the Code.



     “Units” are the basis for determining a Member’s share of the profits and losses and
distributions of the Company’s assets pursuant to this Agreement. In the event of any split,
subdivision or combination of the issued and outstanding Partnership Units by the Partnership, the
number of Units held by each Member shall be adjusted so that the number of Units held by such
Member following such split, subdivision or combination equals the product of the number of Units
held by such Member immediately prior to such split, subdivision or combination multiplied by a
fraction, the numerator of which shall be the number of outstanding Partnership Units on the record
date for such split, subdivision or combination (assuming for such purposes that such split,
subdivision or combination has occurred as of such time), and the denominator of which shall be the
actual number of Partnership Units (determined without the above assumption) issued and outstanding
on the record date for such split, subdivision or combination. Any adjustment to the number of
Units held by a Member shall become effective immediately after the effective date of such
adjustment to the number of outstanding Partnership Units; provided, however, that if the Company
receives a Notice of Redemption after the record date, but prior to the effective date of such
split, subdivision or combination, the number of Units held by a Member shall be determined as if
the Company had received the Notice of Redemption immediately prior to the record date for such
split, subdivision or combination. Any Unit held by a Partner is a “Profits Interest Unit”
referred to in the EDR 2004 Equity Incentive Plan.



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     “Valuation Date” shall mean the “Valuation Date,” as defined in the Partnership
Agreement, with respect to the applicable Associated Partnership Units.



     “Value” shall have the meaning set forth in the Partnership Agreement.



     1.2 Name and Office



     (a) Name. The name of the Company is Education Realty Limited Partner LLC.



     (b) Registered Office. The registered office of the Company in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware
19801, and the registered agent for service of process on the Company at such address is The
Corporation Trust Company. At any time, the Manager may designate another registered agent and/or
registered office for the Company.



     (c) Authorized Person. Notwithstanding anything to the contrary contained in this
Agreement, the Members hereby approve and ratify the execution and filing of all certificates
executed and filed with the Secretary of State of the State of Delaware through the date hereof by
the organizer of the Company (the “Incorporator”), as an authorized person within the
meaning of the Act, on behalf of the Company, including the original Certificate of Formation of
the Company (the “Certificate”). Hereafter, the Incorporator’s powers as an authorized
person within the meaning of the Act shall cease, and the Manager, as an authorized person within
the meaning of the Act, shall execute, deliver and file, or cause the execution, delivery or filing
of, all certificates (and any amendments and/or restatements thereof) required or permitted by the
Act to be filed with the Secretary of State of the State of Delaware.



     1.3 Purposes. Subject to the other provisions of this Agreement, the purposes of the
Company are (a) to become a partner in the Partnership in order to participate in certain profits
and distributions that may be earned by the Partnership, (b) to engage in such other activities as
the Manager deems necessary, advisable, convenient or incidental to the foregoing and (c) to engage
in any other lawful acts or activities consistent with the foregoing for which limited liability
companies may be organized under the Act.



     1.4 Term. The term of the Company shall be perpetual.



     1.5 Fiscal Year. The Fiscal Year of the Company shall end on the 31st day of December
in each year. The Company shall have the same Fiscal Year for income tax and for financial and
partnership accounting purposes.



     1.6 Powers. The Company shall be and hereby is authorized and empowered to do or
cause to be done any and all acts determined by the Manager to be necessary, advisable, convenient
or incidental in furtherance of the purposes of the Company; and, without limiting the generality
of the foregoing, the Company is hereby authorized and empowered:



     (a) to execute, deliver and perform its obligations under contracts and agreements;



     (b) to the extent the consent or approval of the Company may be requested by the Partnership
or any other Entity in which it holds an interest, to provide or withhold the Company’s consent or
approval as the Manager shall determine;



     (c) to acquire, hold, manage, vote, Transfer and own securities and any other assets held by
the Company;



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     (d) to open, maintain and close bank and brokerage accounts and to draw checks or other orders
for the payment of moneys;



     (e) to set aside funds for reasonable reserves, anticipated contingencies and working capital;



     (f) to bring, defend, settle and dispose of Proceedings and otherwise to bring and defend
actions and proceedings at law or in equity or before any governmental, administrative or other
regulatory agency, body or commission;



     (g) to retain consultants, custodians, attorneys, accountants and other agents and employees
and to authorize each such agent and employee (who may be designated as officers) to act for and on
behalf of the Company;



     (h) to indemnify any Person in accordance with the Act or this Agreement, and to obtain any
and all types of insurance;



     (i) to prepare and file all tax returns of the Company, and to make such elections under the
Code and other relevant tax laws as to the treatment of items of Company income, gain, loss and
deduction, and as to all other relevant matters, as the Manager deems necessary or appropriate;



     (j) to take all action that may be necessary, advisable, convenient or incidental for the
continuation of the Company’s valid existence as a limited liability company under the Act, and in
each other jurisdiction in which such action is necessary to protect the limited liability of the
Members or to enable the Company, consistent with such limited liability, to conduct the investment
and other activities in which they are engaged; and



     (k) to carry on any other activities necessary to, in connection with, or incidental to any of
the foregoing or the Company’s investment and other activities.



     1.7 Qualification in Other Jurisdictions. The Company shall cause itself to be
qualified, formed or registered under assumed or fictitious name statutes or similar laws in any
jurisdiction in which the Company transacts business and in which such qualification or
registration is required by law or deemed advisable by the Company.



ARTICLE II




THE MANAGER




     2.1 Management of the Company.



     (a) General. The management, control and operation of and the determination of policy
with respect to the Company and other activities shall be vested exclusively in the Manager, who is
hereby authorized and empowered on behalf and in the name of the Company, but subject to the other
provisions of this Agreement, to carry out any and all of the purposes of the Company and to
perform all acts and enter into and perform all contracts and other undertakings that the Manager
may deem necessary, advisable, convenient or incidental thereto.



     (b) Restrictions on the Manager. The Manager shall not: (i) do any act in
contravention of any applicable law, regulation or provision of this Agreement; (ii) possess
Company property for other than a Company purpose; (iii) pay any compensation to the Manager, any
Member or any Affiliate of a Manager



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or Member except as specifically provided in this Agreement; or (iv) admit any Person as a
Member except as permitted in this Agreement and the Act.



     (c) Manager as Agent. The Manager, to the extent of its powers set forth in this
Agreement, is an agent of the Company for the purpose of the Company’s business, and the actions of
the Manager taken in accordance with this Agreement shall bind the Company.



     2.2 Reliance by Third Parties. In dealing with the Manager and its duly appointed
agents, no Person shall be required to inquire as to the authority of the Manager or any such agent
to bind the Company.



     2.3 Ability to Bind the Company. Unless otherwise expressly provided herein, the
Manager shall have the authority to execute and deliver, in the name and on behalf of the Company,
checks, orders, contracts, leases, notes, drafts and other documents and instruments in connection
with the ordinary course of the business of the Company.



     2.4 Conflicts of Interest. While the Manager intends to avoid situations involving
conflicts of interest, each Member acknowledges that there may be situations in which the interests
of the Company, in the Partnership or otherwise, may conflict with the interests of the Manager or
EDR and the other Members. In the event of a conflict between the interests of the shareholders of
the Manager or EDR, on the one hand, and the members of the Company on the other hand, the Manager
shall endeavor in good faith to resolve the conflict in a manner not adverse to either the Members;
provided, however, that any such conflict that cannot be resolved in a manner not adverse to either
the shareholders of EDR or the Members shall be resolved in favor of the shareholders of EDR.



     2.5 No Liability for Return of Capital Contributions. None of the Manager, EDR, the
Partnership or any of their respective Affiliates shall be liable for the return of the Capital
Contributions of any Member, and such return shall be made solely from Available Assets of the
Company, if any.



     2.6 Bankruptcy of Manager. The bankruptcy or removal of the Manager shall not in and
of itself dissolve or terminate the Company.



     2.7 Removal/Replacement of Manager. Education Realty OP GP, Inc. may not, under any
circumstances, be removed as Manager, except upon its bankruptcy, dissolution or liquidation, in
which event it shall be automatically be removed as Manager upon the happening of such event
without any further action by any Member and the Members holding a majority of the Units may elect
a successor Manager.



ARTICLE III




THE MEMBERS




     3.1 No Participation in Management. Except as otherwise expressly provided herein,
the Members shall not take part in the management or control of the Company (including, without
limitation, the voting of the Partnership Units held by the Company), transact any business in the
Company’s name or have the power to sign documents for or otherwise bind the Company.



     3.2 Limitation of Liability. Except as may otherwise be provided by the Act or as
expressly provided for herein, the liability of each Member is limited to such Member’s required
Capital Contribution hereunder.



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     3.3 No Priority. Except as expressly provided in this Agreement, no Member shall have
priority over any other Member either as to the return of the amount of such Member’s Capital
Contribution or as to any allocation of any item of income, gain, loss, deduction or credit of the
Company.



     3.4 Bankruptcy, Dissolution or Withdrawal of a Member. The bankruptcy, dissolution or
withdrawal of a Member shall not in and of itself dissolve or terminate the Company.



     3.5 No Removal of a Member. Except as provided in Section 9.2 below, a Member may not
be removed as a Member except as provided in an agreement between such Member and the Company, the
Partnership, EDR or any Affiliate thereof.



     3.6 Other Activities, etc. Except as expressly provided herein or pursuant to an
effective employment agreement between EDR (or any of its Affiliates) and a Member, no Member
shall, solely by reason of the provisions of this Agreement, suffer any restriction in his, her or
its investment or other activities.



ARTICLE IV




LIABILITY, EXCULPATION AND INDEMNIFICATION




     4.1 Liability. Except as otherwise provided in this Agreement or by nonwaivable
provisions of the Act, the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company,
and no Covered Person shall be obligated personally for any such debt, obligation or liability of
the Company.



     4.2 Exculpation.



     (a) Generally. No Covered Person shall be liable to the Company or any Member for any
actual or alleged act or omission taken or suffered by such Covered Person in connection with the
Company and its investments, in good faith and in the reasonable belief that such act or omission
is in or is not contrary to the best interests of the Company and is within the scope of authority
granted to such Covered Person by this Agreement, provided that such act or omission is not in
material violation of this Agreement. No Member shall be liable to the Company or any Member for
any action taken by any other Member.



     (b) Reliance Generally. A Covered Person shall incur no liability in acting upon any
signature or writing reasonably believed by such Covered Person to be genuine, and may rely in good
faith on a certificate signed by an executive officer of any Person in order to ascertain any fact
with respect to such Person or within such Person’s knowledge and may rely in good faith on an
opinion of counsel selected with reasonable care by such Covered Person with respect to legal
matters. Each Covered Person may act directly or through such Covered Person’s agents or
attorneys, provided that the Company has received from such Covered Person authorization on behalf
of its agents and/or attorneys, in form and content acceptable to the Company in its reasonable
discretion. Each Covered Person may consult with counsel,
appraisers, engineers, accountants and other skilled Persons of such Covered Person’s choosing
and shall not be liable for anything done, suffered or omitted in good faith and within the scope
of this Agreement in reasonable reliance upon the advice of any of such Persons. All reasonable
expenses incurred by a Covered Person pursuant to the immediately preceding sentence shall be a
Company Expense. No Covered Person shall be liable to the Company or
any Member for any error of
judgment made in good faith by a responsible officer or employee of such Covered Person or such
Covered Person’s Affiliate. Except as otherwise provided in this Section 4.2, no Covered Person
shall be liable to the Company or



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any Member for any mistake of fact or judgment by such Covered
Person in conducting the affairs of the Company or otherwise acting in respect of and within the
scope of this Agreement.




     (c) Reliance on this Agreement. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or
to the Members, any Covered Person acting under this Agreement or otherwise shall not be liable to
the Company or to any Member for such Covered Person’s good faith reliance on the provisions of
this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members
to replace such other duties and liabilities of such Covered Person.



     (d) Not Liable for Return of Capital Contributions. No Covered Person shall be liable
for the return of the Capital Contributions or Capital Account of any Member, and such return shall
be made solely from the Company’s Available Assets, if any, and each Member hereby waives any and
all claims it may have against each Covered Person in this regard.



     4.3 Indemnification.



     (a) Indemnification Generally. The Company shall and hereby does, to the fullest
extent permitted by applicable law, indemnify, hold harmless and release (and each Member does
hereby release) each Covered Person from and against any and all claims, demands, liabilities,
costs, expenses, damages, losses, suits, proceedings and actions, whether judicial, administrative,
investigative or otherwise, of whatever nature, known or unknown, liquidated or unliquidated
(“Claims”), that may accrue to or be incurred by any Covered Person, or in which any
Covered Person may become involved, as a party or otherwise, or with which any Covered Person may
be threatened, relating to or arising out of the investment or other activities of the Company, or
activities undertaken in connection with the Company, or otherwise relating to or arising out of
this Agreement, including amounts paid in satisfaction of judgments, in compromise or as fines or
penalties, and counsel fees and expenses incurred in connection with the preparation for or defense
or disposition of any investigation, action, suit, arbitration or other proceeding (a
“Proceeding”), whether civil or criminal (all of such Claims and amounts covered by this
Section 4.3, and all expenses referred to in Section 4.3(d), are referred to collectively as
“Damages”), except to the extent that it shall have been determined ultimately by a court
of competent jurisdiction that such Damages arose primarily from the breach of this Agreement or
the intentional misconduct or gross negligence of such Covered Person (any such breach, intentional
misconduct or gross negligence being “Disabling Conduct”). The termination of any
Proceeding by settlement shall not, of itself, create a presumption that any Damages relating to
such settlement or otherwise relating to such Proceedings arose primarily from a material violation
of this Agreement by, or the Disabling Conduct of, any Covered Person.



     (b) No Direct Member Indemnity. Members shall not be required directly to indemnify
any Covered Person.



     (c) Expenses. The reasonable expenses incurred by a Covered Person in defense or
settlement of any Claim that may be subject to a right of indemnification hereunder shall be
advanced by the Company
to such Covered Person prior to the final disposition thereof upon receipt of an undertaking
by or on behalf of the Covered Person to repay such amount if it shall be determined ultimately by
a court of competent jurisdiction that the Covered Person is not entitled to be indemnified
hereunder.



     (d) Notices of Claims. Promptly after receipt by a Covered Person of notice of the
commencement of any Proceeding, such Covered Person shall, if a claim for indemnification in
respect thereof is to be made against the Company, give written notice to the Company of the
commencement of



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such Proceeding, provided that the failure of any Covered Person to give notice as
provided herein shall not relieve the Company of its obligations under this Section 4.3, except to
the extent that the Company is actually prejudiced by such failure to give notice. In case any
such Proceeding is brought against a Covered Person (other than a derivative suit in right of the
Company), the Company will be entitled to participate in and to assume the defense thereof to the
extent that the Company may wish, with counsel reasonably satisfactory to such Covered Person.
After notice from the Company to such Covered Person of the Company’s election to assume the
defense thereof, the Company will not be liable for expenses subsequently incurred by such Covered
Person in connection with the defense thereof. The Company will not consent to entry of any
judgment or enter into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Covered Person of a release from all liability in
respect to such Claim. The right of any Covered Person to the indemnification provided herein
shall be cumulative with, and in addition to, any and all rights to which such Covered Person may
otherwise be entitled by contract or as a matter of law or equity and shall extend to such Covered
Person’s successors, assigns and legal representatives.




     (e) No Waiver. Nothing contained in this Section 4.3 shall constitute a waiver by any
Member of any right that it may have against any party under U.S. federal or state securities laws.



     (f) Expenses Incurred in Connection With This Agreement. Notwithstanding anything to
the contrary contained in this Section 4.3 or elsewhere in this Agreement, each of the Members,
other than the Manager, shall pay all of their own expenses incurred by it in connection with its
review of this Agreement at the time that the Member was contemplating becoming a Member under this
Agreement.



ARTICLE V




CAPITAL CONTRIBUTIONS;

CAPITAL ACCOUNTS;




     5.1 Capital Commitments. Upon admission to the Company, each Member shall make a
Capital Contribution to the Company comprised of cash in an amount equal to $100. Except as
provided in this Section 5.1, in no event shall any Member other than the Manager be required to
make any Capital Contribution or other payment to the Company.



     5.2 Creditors. No Member shall have any duty or obligation to any creditor of the
Company to make any Capital Contribution.



     5.3 Capital Accounts. There shall be established on the books and records of the
Company a capital account for each Member (a “Capital Account”).



     5.4 Adjustments to Capital Accounts. As of the last day of each fiscal year, the
balance in each Member’s Capital Account shall be adjusted by (a) increasing such balance by (i)
such Member’s allocable share of each item of the Company’s income and gain for such fiscal year
(allocated in accordance with Section 5.6), (ii) any Capital Contributions,
made by such Member during such Period and (iii) any amounts contributed by such Member to the
Company pursuant to Sections 4.3(b) and 6.5(d) during such fiscal year and (b) decreasing such
balance by (i) the amount of cash or the value of securities or other property distributed to such
Member pursuant to this Agreement and (ii) such Member’s allocable share of each item of the
Company’s loss and deduction for such fiscal year (allocated in accordance with Sections 5.5 and
5.6). Each Member’s Capital Account shall be further adjusted with respect to any special
allocations or adjustments pursuant to this Agreement.



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     5.5 Allocations to Capital Accounts/No Deficit Restoration Obligation. Except as
otherwise provided herein, each item of income, gain, loss and deduction of the Company (determined
in accordance with U.S. tax principles as applied to the maintenance of capital accounts) shall be
allocated among the Capital Accounts of the Members with respect to each Fiscal Year, as of the end
of such Fiscal Year, in a manner that as closely as possible gives economic effect to the
provisions of Articles V and VI and the other relevant provisions of this Agreement. Without
limiting the foregoing, the Manager shall allocate to any Redeeming Member all gain or loss from
any redemption or sale by the Partnership of Associated Partnership Units that is attributable to
the exercise by such Redeeming Member of its Redemption Right under Section 6.4.



     5.6 Tax Allocations and Other Tax Matters. Except as otherwise provided herein, the
income, gains, losses and deductions recognized by the Company shall be allocated among the Members
for U.S. federal, state and local income tax purposes, to the extent permitted under the Code and
the Treasury Regulations, in the same manner that each such item is allocated to the Members’
Capital Accounts. Notwithstanding the foregoing, the Manager shall have the power to adjust
allocations made pursuant to this Section 5.6 as may be necessary to maintain substantial economic
effect, or to ensure that such allocations are in accordance with the interests of the Members in
the Company, in each case within the meaning of the Code and the Treasury Regulations. Tax credits
shall be allocated in good faith by the Manager. All matters concerning allocations for U.S.
federal, state and local and non-U.S. income tax purposes, including accounting procedures, not
expressly provided for by the terms of this Agreement shall be determined in good faith by the
Manager. The Manager is hereby designated as the tax matters partner of the Company, as provided
in the Treasury Regulations pursuant to section 6231 of the Code and any similar provisions under
any other state or local or non-U.S. tax laws. Each Member hereby consents to such designation and
agrees that upon the request of the Manager it will execute, certify, acknowledge, deliver, swear
to, file and record at the appropriate public offices such documents as may be necessary or
appropriate to evidence such consent. The Manager shall not permit the Company to elect, and the
Company shall not elect, to be treated as an association taxable as a corporation for U.S. federal,
state or local income tax purposes under Treasury Regulations section 301.7701-3(a) or under any
corresponding provision of state or local law.



ARTICLE VI




DISTRIBUTIONS; WITHHOLDING; REDEMPTION




     6.1 Distributions.



     (a) Timing and Form of Distributions. The Company shall, subject to the other
provisions of this Article VI, make a distribution of any Cash Flow or Disposition Proceeds, as
applicable, pursuant to Sections 6.1(b) or Section 6.1(c), as applicable, not less frequently than
quarterly.



     (b) Making of Distributions of Cash Flow. Cash Flow shall be distributed to the
Members based on their relative Unit ownership as of the date of such distribution; provided,
however, that if and to the extent distributions of Cash Flow coincide with the payment of
dividends in respect of the REIT Common Shares, which typically will occur quarterly, no Member
shall be entitled to a distribution of Cash Flow with respect to any fiscal quarter unless such
Member shall have been a Member during such fiscal quarter.



     (c) Making of Distribution of Disposition Proceeds. Disposition Proceeds shall be
distributed to the Members in accordance with their positive Capital Account balances. The Capital
Account balances of all of the Members shall be adjusted immediately after any Capital Transaction
and prior to any



11









 




distribution pursuant to this Section 6.1(c) to reflect the allocation of all
profits and losses of the Company through the date of the event of the transaction that produces
such Disposition Proceeds, including an allocation of all profits and loss from the Partnership
with respect to such Capital Transaction that produces such Disposition Proceeds.




     6.2 General Distribution Provisions. Notwithstanding any other provision of this
Agreement, distributions shall be made only to the extent of Available Assets and in compliance
with the Act and other applicable law. Any distribution by the Company pursuant to Articles VI and
X to the Person shown on the Company’s records as a Member or to such Member’s legal
representatives, or to the transferee of such Person’s right to receive such distributions as
provided herein, shall acquit the Company of all liability to any other Person that may be
interested in such distribution by reason of any Transfer of such Person’s interest in the Company
for any reason (including a Transfer of such interest by reason of the death, incompetence,
bankruptcy or liquidation of such Person).



     6.3 Withholding. Notwithstanding any other provision of this Agreement, each Member
hereby authorizes the Company to withhold and to pay over, or otherwise pay, any withholding or
other taxes payable by the Company or any of its Affiliates (pursuant to the Code or any provision
of U.S. federal, state or local or non-U.S. tax law) with respect to such Member or as a result of
such Member’s status as a Member hereunder. If and to the extent that the Company shall be
required to withhold or pay any such withholding or other taxes, such Member shall be deemed for
all purposes of this Agreement to have received a payment from the Company as of the time such
withholding or other tax is required to be paid, which payment shall be deemed to be a distribution
with respect to such Member’s interest in the Company to the extent that such Member (or any
successor to such Member’s interest in the Company) would have received a distribution but for such
withholding. In addition, if and to the extent that the Company receives a distribution or payment
from or in respect of which tax was withheld, as a result of (or attributable to) such Member’s
status as a Member hereunder, as determined by the Manager, such Member shall be deemed for all
purposes of this Agreement to have received a distribution from the Company as of the time such
withholding was paid. Unless the Manager
determines otherwise, the withholdings by the Company referred to in this Section 6.3 shall be
made at the maximum applicable statutory rate under the applicable tax law.



     6.4 Redemption Right.



     (a) Subject to the provisions of any agreements between the Company, the Partnership, EDR or
any Affiliate thereof and one or more Members, each Member (other than the Manager) shall have the
right (the “Redemption Right”) to require the Company to redeem on a Specified Redemption
Date all or a portion of the Units held by such Member at a redemption price equal to the Cash
Amount to be paid by the Company in cash or REIT Common Shares. The Company shall have until five
Business Days following the time that it receives from the Partnership pursuant to Section 6.4(b)
(the “Payout Period”) the consideration from the Associated Partnership Units (as defined
in Section 6.4(b) below) to redeem the Units offered for redemption from the Member (the
“Redeeming Member”) who is exercising the Redemption Right. If, pursuant to the
Partnership Agreement, the Company receives REIT Common Shares in redemption or sale of some or all
of the Associated Partnership Units tendered pursuant to Section 6.4(b), then the Company may pay
all or any portion of the unpaid Cash Amount payable to the Redeeming Member with REIT Common
Shares having a Value equal to such portion of the unpaid Cash Amount. A Redeeming Member shall
also be entitled to receive any interest on the Cash Amount (whether paid in cash or REIT Common
Shares) that is paid by the Partnership, EDR or any Affiliate thereof on the cash or REIT Common
Shares distributed or paid to the Partnership in connection with the redemption or sale of the
Associated Partnership Units. The Redemption Right shall be exercised pursuant to a Notice of
Redemption delivered to the Company by the Redeeming Member. Following its receipt of a Notice of
Redemption, the Company shall promptly exercise its right, to the extent it has the



12









 




right under the Partnership Agreement, to redeem the applicable Associated Partnership Units. A Member may not
exercise the Redemption Right for less than one thousand (1,000) Units or, if such Member holds
less than one thousand (1,000) Units, less than all of the Units held by such Member. Moreover, a
Member may not exercise the Redemption Right more than once per calendar quarter, provided,
however, that the Manager may amend this Section 6.4(a) to limit the number of exercises of the
Redemption Right by the Members to not less than once per calendar year. Neither the Redeeming
Member nor any permitted or purported assignee of any Member shall have any right, with respect to
any Units so redeemed, to receive any distributions paid after the Specified Redemption Date. Each
Redeeming Member agrees to provide such representations and related indemnities regarding good and
unencumbered title, and to execute such documents, as the Manager may reasonably require in
connection with any redemption.




     (b) If a Redeeming Member exercises its Redemption Right, then the Company shall exercise its
redemption right under the Partnership Agreement with respect to a number of Partnership Units (the
“Associated Partnership Units”) that are redeemable under the Partnership Agreement for an
amount of cash equal to the Cash Amount for the Units that the Redeeming Member has elected to
redeem and the Partnership shall pay the Cash Amount with cash or REIT Common Shares that are paid
or distributed to the Company in connection with the redemption or sale of such Associated
Partnership Units. Each Redeeming Member agrees to provide such representations and related
indemnities regarding good and unencumbered title, and to execute such documents, as EDR may
reasonably require in connection with the issuance or transfer of REIT Common Shares to the
Redeeming Member, upon exercise of the Redemption Right. If the Redemption Right is satisfied by
the delivery of REIT Common Shares, the Redeeming Member shall be deemed to become a holder of REIT
Common Shares as of the close of business on the Specified Redemption Date.



     (c) Each Member covenants and agrees that all Units delivered for redemption shall be
delivered to the Company free and clear of all liens and, notwithstanding anything herein contained
to the contrary, neither the Manager, EDR (nor any of its Affiliates) nor the Company shall be
under any obligation to
acquire Units which are or may be subject to any liens. Each Member further agrees that, in
the event any state or local property transfer tax is payable as a result of the transfer of its
Units to the Company, such Member shall assume and pay such transfer tax.



     (d) REIT Common Shares delivered to a Redeeming Member pursuant to this Section 6.4 may
contain such legends regarding restrictions on transfer as EDR in good faith determines to be
necessary or advisable in order to (i) comply with restrictions on transfer under the Securities
Act and applicable state securities laws and (ii) protect the ability of EDR to continue to qualify
as a real estate investment trust.



ARTICLE VII




BOOKS AND RECORDS; TAX RETURNS; REPORTS TO MEMBERS




     7.1 Books and Records. The Manager shall keep or cause to be kept full and accurate
accounts of the transactions of the Company in proper books and records of account, which shall set
forth all information required by the Act. Such books and records shall be maintained on the basis
utilized in preparing the Company’s United States income tax returns. Such books and records shall
be available for inspection and copying by the Members to the extent required by applicable law or
as otherwise may be determined by the Manager, provided that unless otherwise determined by the
Manager, no Member (other than the Manager) shall be entitled to review, inspect or know the Units
owned by any other Member, and further provided that, each Member (other than the Manager) agrees
that it will not request



13









 




from the Internal Revenue Service or any other state or local agency a
copy of the Company’s Form 1065 (or applicable state or local return) with respect to any year.




     7.2 United States Federal, State and Local Income Tax Information. On a timely basis,
after the end of each Fiscal Year, the Company shall send to each Person that was a Member at any
time during such fiscal year copies of (a) Schedule K-1 to United States Internal Revenue Service
Form 1065, “Partner’s Share of Income, Credits, Deductions, Etc.,” or any successor schedule or
form, for such Person, together with such additional information as may be necessary for such
Person to file his, her or its United States federal income tax returns, and (b) such similar
schedules as may be necessary for such Person to file his, her or its state and local income tax
returns.



ARTICLE VIII




RESERVED




ARTICLE IX




ADMISSION OF ADDITIONAL MEMBERS; TRANSFERS;

REMOVAL OF INACTIVE MEMBERS




     9.1 Admission of Additional Members.



     (a) In General. Subject to Section 11.2, the Manager may admit such Persons to the
Company as the Manager shall determine (each, an “Additional Member”). Each such Person
shall be admitted as an Additional Member at the time such Person (i) executes a counterpart of
this Agreement and (ii) is listed as a Member on the books and records of the Company.
Notwithstanding the foregoing or any other provision herein to the contrary, no Person may be
admitted as a Member after January 1, 2006 unless and until (1) such Person shall be an employee of
EDR or one of its Affiliates and (2) shall have been continuously employed by EDR or one of its
Affiliates for at least one full year.



     (b) Units. In connection with the admission of any Additional Member, the Manager
shall determine the number of Units to be issued to such Additional Member. In the event that,
after taking into account the Units to be issued to such Additional Member, the aggregate Units
held by all Members (including the Units to be issued to such Additional Member) exceeds the
aggregate number of Partnership Units held by the Company, the Manager shall reduce the Units held
by it until the aggregate Units held by all Members is equal to the aggregate number of Partnership
Units held by the Company.



     9.2 Transfers.



     (a) General. Except as provided in Section 9.2(b), no Member may Transfer in any
manner whatsoever all or any part of such Member’s interest in the Company without the express
prior written consent of the Manager.



     (b) Certain Transfers. Without the consent of the Manager, upon the death of a Member
who is a natural person, such Member’s interest will be transferred to the estate of such Member or
otherwise in accordance with applicable law, provided that such transferee shall not be substituted
for the deceased Member as a member of the Company without the consent of the Manager and such
Member’s interest shall be subject to the provisions of Section 9.2(c) below.



14









 





     (c) Mandatory Transfer Upon Termination of Employment, Retirement or After Death. If
at any time a Member’s employment by EDR or one of its Affiliates shall terminate for any reason
(including death, disability or retirement), such Member, or his personal representative or lawful
assign, shall Transfer such Member’s Units to the Company. The Company shall purchase and redeem
such Units for a price, payable in cash within ten (10) business days after termination, equal to
the greater of $1.00 or such Member’s Capital Account at the date of termination. In the
alternative, EDR, at its sole option, may pay all or any portion of the purchase price for such
Units with REIT Common Shares having a Value equal to the portion of such purchase price not paid
in cash.



     (d) Conditions to Transfer. No Transfer of an interest in the Company shall be
permitted if (i) such Transfer would result in a violation of applicable law, including any
securities laws, (ii) as a result of such Transfer, the Company or the Partnership would be
required to register as an investment company under the Investment Company Act or (iii) such
Transfer would result in the Company at any time during its taxable year having more than 100
members, within the meaning of section 1.7704-1(h)(1)(ii) of the Treasury Regulations (taking into
account section 1.7704-1(h)(3) of the Treasury Regulations).



     (e) Transfers in Violation of Agreement Not Recognized. Unless effected in accordance
with and as permitted by this Agreement, any attempted Transfer or substitution not effected in
accordance with and as permitted by this Agreement shall be void.



     9.3 Continuation of Company. Except as otherwise expressly stated herein, the Company
shall not be dissolved as a result of any Member becoming an Inactive Member.



ARTICLE X




DISSOLUTION AND WINDING UP OF THE COMPANY




     10.1 Dissolution. There shall be a dissolution of the Company and its affairs shall
be wound up upon the first to occur of any of the following events:



     (a) the decision made by the Manager to dissolve the Company;



     (b) the entry of a decree of judicial dissolution of the Company pursuant to section 18-802 of
the Act; or



     (c) at any time there are no Members, unless the business of the Company is continued in
accordance with the Act.



     10.2 Winding Up. Upon the dissolution of the Company, the Manager (or any duly
designated representative) shall use all commercially reasonable efforts to liquidate all of the
Company assets and wind up the affairs of the Company in an orderly manner, provided that if in the
judgment of the Manager (or such representative) an asset of the Company should not be liquidated,
the Manager (or such representative) shall allocate, on the basis of the value of any assets of the
Company not sold or otherwise disposed of, any unrealized gain or loss based on such value to the
Members’ Capital Accounts as though the assets in question had been sold on the date of such
allocation and, after giving effect to any such adjustment, distribute said assets in accordance
with Section 10.3, subject to the priorities set forth in Section 10.3, and further provided that
the Manager (or such other representative) will attempt to liquidate sufficient Company assets to
satisfy in cash (or make reasonable provision in cash for) the debts and liabilities referred to in
Section 10.3.



15









 





     10.3 Final Distribution. After the application or distribution of the proceeds of the
liquidation of the Company’s assets in one or more installments to the satisfaction of the
liabilities to creditors of the Company, including to the satisfaction of the expenses of the
winding-up, liquidation and dissolution of the Company (whether by payment or the making of
reasonable provision for payment thereof), the remaining proceeds, if any, plus any remaining
assets of the Company shall be distributed in accordance with the provisions of Article VI.



     10.4 Time for Liquidation, etc. A reasonable time period shall be allowed for the
orderly winding up and liquidation of the assets of the Company and the discharge of liabilities to
creditors so as to enable the Company to seek to minimize potential losses upon such liquidation.
The provisions of this Agreement shall remain in full force and effect during the period of winding
up and until the filing of a certificate of cancellation of the Certificate with the Secretary of
State of the State of Delaware.



     10.5 Termination. Upon completion of the foregoing, the Manager (or any duly
designated representative) or such other Person as required by the Act, shall execute, acknowledge
and cause to be filed a certificate of cancellation of the Certificate with the Secretary of State
of the State of Delaware.



ARTICLE XI




MISCELLANEOUS




     11.1 Entire Agreement. This Agreement, incorporate the entire understanding of the
parties with respect to the grant by EDR and the Partnership of a profits interest in the
Partnership and the other matters set forth herein, and supersedes all previous agreements
regarding such subject matters.



     11.2 Amendments. Any modifications of or amendments to this Agreement duly adopted in
accordance with the terms of this Agreement may be executed in accordance with this Section. The
terms and provisions of this Agreement may be modified or amended at any time and from time to time
by the Manager, provided that, except as otherwise expressly provided herein, no such modification,
amendment or waiver that would (a) alter the economic interest in the Company (including such
Member’s required Capital Contributions or right to distributions) of any Member (other than the
Manager), or (b) extend or increase any financial obligation or liability of any Member, shall be
effective without the consent of such affected Member.



     11.3 Notices. Each notice relating to this Agreement shall be in writing and shall be
delivered (a) in person, by registered or certified mail or by private courier or (b) by facsimile
or other electronic means, confirmed by telephone. All notices to any Member shall be delivered to
such Member at the address of such Member as set forth in the records of the Company. All notices
to the Company shall be delivered to the Company at its address set forth in the first sentence of
Section 1.2(b). A notice given in accordance with the foregoing clause (a) shall be deemed to have
been effectively given three (3) Business Days after such notice is mailed by registered or
certified mail, return receipt requested, and one Business Day after such notice is sent by Federal
Express or other one-day service provider, to the proper address, or at the time delivered when
delivered in person or by private courier. Any notice by facsimile or other electronic means shall
be deemed to have been effectively given when sent and confirmed by telephone in accordance with
the foregoing clause (b).



     11.4 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall constitute a single
agreement.



16









 





     11.5 Successors and Assigns. This Agreement shall inure to the benefit of the Members
and the Covered Persons, and shall be binding upon the parties, and, subject to Section 9.2, their
respective successors, permitted assigns and, in the case of individual Covered Persons, heirs and
legal representatives.



     11.6 Severability. Every term and provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such
term or provision will be enforced to the maximum extent permitted by law and, in any event, such
illegality or invalidity shall not affect the validity of the remainder of this Agreement.



     11.7 Further Actions. Each Member agrees to execute and deliver such other
certificates, agreements and documents, and take such other actions, as may reasonably be requested
by the Company in connection with the achievement of its purposes or to give effect to the
provisions of this Agreement, in each case as are not inconsistent with the terms and provisions of
this Agreement.



     11.8 Non-Waiver. No provision of this Agreement shall be deemed to have been waived
unless such waiver is given in writing, and no such waiver shall be deemed to be a waiver of any
other or further obligation or liability of the party or parties in whose favor such waiver was
given.



     11.9 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN THAT JURISDICTION.



     11.10 Dispute Resolution. Any dispute, controversy or question arising under, out of,
or relating to this Agreement (or the breach thereof) shall be submitted to, and finally settled
by, arbitration in the metropolitan Memphis, Tennessee area, pursuant to the commercial arbitration
rules then in effect of the American Arbitration Association (or at any time or at any other place
or under any other form of arbitration mutually acceptable to the parties so involved). Any
determination rendered shall be final and conclusive upon the parties and a judgment thereon may be
entered in the highest court of the forum, state or federal, having jurisdiction. The expenses of
the arbitration shall be borne equally by the Manager, on the one hand, and the applicable
Member(s), on the other hand, provided that each party shall pay for and bear the cost of its own
experts, evidence and counsel’s fees, except that in the discretion of the arbitrator, any award
may include the cost of a party’s counsel if the arbitrator expressly determines that the party
against whom such award is entered has caused the dispute, controversy or claim to be submitted to
arbitration as a dilatory tactic.



     11.11 Confidentiality. Each Member shall keep confidential and shall not disclose
without the prior written consent of the Manager any information with respect to this Agreement,
provided that a Member may disclose any such information (a) as has become generally available to
the public other than as a result of the breach of this Section 11.11 by such Member, (b) as may be
required to be included in any report, statement or testimony required to be submitted to any
municipal, state or national regulatory body having jurisdiction over such Member, (c) as may be
required in response to any summons or subpoena or in connection with any litigation, (d) to the
extent necessary in order to comply with any law, order, regulation or ruling applicable to such
Member, (e) to such Member’s professional advisors, and (f) as may be required in connection with
an audit by any taxing authority.



     11.12 Waiver of Partition. Except as may otherwise be provided by law in connection
with the dissolution, winding up and liquidation of the Company, each Member hereby irrevocably
waives any and all rights that such Member may have to maintain an action for partition of any of
the Member’s property.



17









 





ARTICLE XII




POWER OF ATTORNEY; REPRESENTATIONS




     12.1 Power of Attorney. Subject to Section 11.2, each Member does hereby irrevocably
constitute and appoint the Manager, or the successor thereof, with full power of substitution, the
true and lawful attorney-in-fact and agent of such Member, to execute, acknowledge, verify, swear
to, deliver, record and file, in his, her or its name, place and stead, all instruments, documents
and certificates which may from time to time be required by the laws of the
United States of America, the State of Delaware, any other jurisdiction in which the Company
conducts or plans to conduct business, or any political subdivision or agency thereof, to
effectuate, implement and continue the valid existence and business of the Company, including,
without limitation, the power and authority to execute, verify, swear to, acknowledge, deliver,
record and file:



     (a) all certificates and other instruments, including, without limitation, any amendments to
this Agreement or to the Certificate that the Manager deems appropriate to (i) form, qualify or
continue the Company as a limited liability company in the State of Delaware and all other
jurisdictions in which the Company conducts or plans to conduct business and (ii) admit the
undersigned as a Member in the Company;



     (b) all instruments that the Manager deems appropriate to reflect any amendment to this
Agreement or the Certificate (i) to satisfy any requirements, conditions, guidelines or opinions
contained in any opinion, directive, order, ruling or regulation of the Securities and Exchange
Commission, the Internal Revenue Service, or any other United States federal or state agency, or in
any United States federal or state statute, compliance with which the Manager deems to be in the
best interests of the Company, (ii) to change the name of the Company or (iii) to cure any
ambiguity or correct or supplement any provision herein or therein contained that may be incomplete
or inconsistent with any other provision herein or therein contained;



     (c) all conveyances and other instruments that the Manager deems appropriate to reflect and
effect the dissolution and termination of the Company pursuant to the terms of this Agreement,
including the filing of a certificate of cancellation as provided for in Article X;



     (d) all instruments relating to Transfers of interests of Members, or the admission of
Additional Members pursuant to this Agreement;



     (e) certificates of assumed name and such other certificates and instruments as may be
necessary under the fictitious or assumed name statutes from time to time in effect in the State of
Tennessee and all other jurisdictions in which the Company conducts or plans to conduct business;
and



     (f) any other instruments determined by the Manager to be necessary or appropriate in
connection with the proper conduct of the business of the Company and that do not adversely affect
the interests of the Members.



     Such attorney-in-fact and agent shall not, however, have the right, power or authority to
amend or modify this Agreement when acting in such capacities, except to the extent authorized
herein. This power of attorney shall not be affected by the subsequent disability or incompetence
of the principal.



     The power of attorney granted herein shall be deemed to be coupled with an interest, shall be
irrevocable, shall survive the dissolution, bankruptcy or legal disability of any and each Member
and shall extend to his, her or its successors and assigns. The power of attorney granted herein
may be exercised



18









 




by such attorney-in-fact and agent for all Members of the Company (or any of them)
by listing all (or any) of such Members required to execute any such instrument on the signature
page of such instrument, and signing such instrument at the end of such list, acting as
attorney-in-fact. Any person dealing with the Company may conclusively presume and rely upon the
fact that any instrument referred to above, executed by such attorney-in-fact and agent, is
authorized, regular and binding, without further inquiry. If required, the undersigned shall
execute and deliver to the Manager, within five Business Days after receipt of a request therefor,
such further designations, powers of attorney or other instruments as the Manager shall reasonably
deem necessary for the purposes hereof.




     12.2 Representations. Each Member represents, warrants and covenants to the Company
as follows:



     (a) Capacity. Such Member has the full capacity, power and authority to execute,
deliver and perform this Agreement and to subscribe for and purchase an interest as a Member of the
Company. Such Member has duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation of such Member, enforceable against such Member
in accordance with its terms.



     (b) Compliance with Laws and Other Instruments. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and the performance of such
Member’s obligations hereunder will not conflict with, or result in any violation of or default
under, any provision of any agreement or other instrument to which such Member is a party or by
which such Member or any of such Member’s assets are bound, or any judgment, decree, statute,
order, rule or regulation applicable to such Member or such Member’s assets.



     (c) Access to Information. Such Member has carefully reviewed this Agreement and the
documents associated therewith relating to the offering of interests. Such Member has been
provided an opportunity to ask questions of, and such Member has received answers thereto
satisfactory to such Member from, the Company and its representatives regarding such documents and
the terms and conditions of the offering of interests in the Company, and such Member has obtained
all additional information requested by such Member of the Company and its representatives to
verify the accuracy of all information furnished to such Member regarding such documents and the
offering of such interests.



     (d) Evaluation of and Ability to Bear Risks. Such Member has such knowledge and
experience in financial affairs that such Member is capable of evaluating the merits and risks of
purchasing an interest in the Company, and such Member has not relied in connection with this
investment upon any representations, warranties or agreements other than those set forth in this
Agreement. Such Member’s financial situation is such that such Member can afford to bear the
economic risk of holding an interest in the Company for an indefinite period of time, and such
Member can afford to suffer the complete loss of such Member’s investment in such interest.



     (e) Purchase for Investment. Such Member is acquiring the interest in the Company to
be purchased by such Member pursuant to this Agreement for such Member’s own account for investment
and not with a view to or for sale in connection with any distribution of all or any part of such
interest. Such Member will not, directly or indirectly, Transfer all or any part of such interest
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge of all or any part of
such interest) except in accordance with the registration provisions of the Securities Act or an
exemption from such registration provisions, with any applicable state or non-U.S. securities laws,
and with the terms of this Agreement. Such Member understands that such Member must bear the
economic risk of an investment in an interest in the Company for an indefinite period of time
because, among other reasons, the offering and sale of such interests have not been registered
under the Securities Act and, therefore, such an interest cannot be sold other than through a
privately negotiated transaction unless it is subsequently registered under the



19









 




Securities Act or
an exemption from such registration is available. Such Member also understands that sales or
transfers of such interests are further restricted by the provisions of this Agreement, and may be
restricted by other applicable securities laws.




20









 





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



	 	 	 	 	 	 
	 	 	EDUCATION REALTY OP GP, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Paul Bower
	 

	 	 	 	 
	 

	 	Its:	 	 President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	PAUL O. BOWER
	 	 	CRAIG C. CARDWELL
	 	 	RANDALL H. BROWN
	 	 	WILLIAM H. HARRIS
	 	 	THOMAS J. HICKEY
	 	 	WALLACE L. WILCOX
	 	 	SUSAN B. ARRISON
	 	 	J. DREW KOESTER
	 	 	KELLY BOLLINGER
	 	 	JIM CROSSETTI
	 	 	CHARLES HARRIS
	 	 	MAUREEN LANNON
	 	 	GILES PALO
	 	 	CHRISTINE RICHARDS
	 	 	DAN SAMPIETRO
	 	 	BRAD SHAW
	 	 	THOMAS TRUBIANA
	 	 	STEPHEN R. WOO
	 	 	SUSAN V. ROSENBAUM
	 
	 	 	 	 
	 

	 	By:
	 	EDUCATION REALTY OP GP, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Paul Bower
	 

	 	 	 	 
	 

	 	Its:	 	President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	As Attorney-in-Fact for Members pursuant to Section
12.1 of this Agreement






 









 






EXHIBIT A

NOTICE OF EXERCISE OF REDEMPTION RIGHT




     The undersigned hereby irrevocably (i) presents for redemption Units (as defined in the LLC
Agreement defined below) in Education Realty Limited Partner, LLC, in accordance with the terms of
the Limited Liability Company Agreement of Education Realty Limited Partner, LLC (the “LLC
Agreement”), and the Redemption Right (as defined in the LLC Agreement) referred to therein, (ii)
surrenders such Units and all right, title and interest therein, and (iii) directs that the Cash
Amount or REIT Common Shares (both as defined in the LLC Agreement) deliverable upon exercise of
the Redemption Right be delivered to the address specified below, and if REIT Common Shares are to
be delivered, such REIT Common Shares be registered or placed in the name(s) and at the addresses
specified below.



	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 
 	 	 
	 
	 	 	 	 
	Name of Member:
	 	 	 	 
	 
	 	 	 	 
	 

(Signature of Member)

	 	 	 	 
	 
	 	 	 	 
	 

(Street Address)

	 	 	 	 
	 
	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	 

(City State Zip Code)

	 	 	 	 
	 
	 	 	 	 
	IF REIT Shares are to be issued, issue to:
	 	 	 	 
	 
	 	 	 	 
	 

(Name)

	 	 	 	 
	 
	 	 	 	 
	 

(Social Security or Identifying Number)

	 	 	 	 







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