EX-10.2 RESTATED AGREEMENT OF LIMITED PARTNERSHIP






Exhibit 10.2




EDUCATION REALTY OPERATING PARTNERSHIP, LP

FIRST AMENDMENT TO AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP




     This Amendment is made as of June 11, 2008, by EDUCATION REALTY OP GP, INC., a Delaware
corporation, as general partner (the “General Partner”) of EDUCATION REALTY OPERATING
PARTNERSHIP, LP, a Delaware limited partnership (the “Partnership”), for the purpose of
amending the Amended and Restated Agreement of Limited Partnership of the Partnership dated January
31, 2005, as amended (the “Partnership Agreement”). All capitalized terms used herein and
not defined shall have the respective meanings ascribed to them in the Partnership Agreement.



     WHEREAS, Section 11.1(a) of the Partnership Agreement permits the General Partner,
without the consent of the Limited Partners, to amend the Partnership Agreement for the purpose of
setting forth and reflecting in the Partnership Agreement the designations, rights, powers, duties,
and preferences of holders of any additional Partnership Interests issued pursuant to Section
4.3 of the Partnership Agreement;



     WHEREAS, the General Partner desires by this Amendment to so amend the Partnership Agreement
as of this 11th day of June, 2008 to be effective as of January 1, 2008 (the “Effective
Date”);



     WHEREAS, Education Realty OP Limited Partner Trust, a Maryland business trust, is a limited
partner of the Partnership and is a wholly-owned subsidiary (and a disregarded entity for United
States federal income tax purposes) of Education Realty Trust, Inc., a Maryland corporation
(together, the “Company”) that has filed an election to be taxed as a real estate
investment trust under United States federal income tax laws;



     WHEREAS, pursuant to the Education Realty Trust, Inc. 2004 Incentive Plan, as amended and/or
one or more successor or additional equity incentive plans or programs that the Company or the
Partnership may adopt after the date hereof, as amended (each individually and all of them
collectively, as the context requires, the “Plan”), the General Partner resolved to grant
to employees of the Company and its subsidiaries, including the Partnership, Incentive Awards (as
defined in the Plan) which include the issuance to such employees of a Partnership Interest having
the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms
and conditions of redemption and conversion set forth herein and in the Partnership Agreement, such
Partnership Interest to be expressed as a number of Common Partnership Units to be referred to as
Profits Interest Units (“PIUs”); and



     WHEREAS, the issuance of PIUs is permitted by Section 4.3(a)(iii) of the Partnership
Agreement.



     NOW, THEREFORE, the General Partner has set forth in this Amendment pursuant to its authority
under Section 11.1(a) of the Partnership Agreement the following description of the
rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and
conditions of redemption and conversion of a class and series of Partnership Interest which shall



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be referred to as “PIUs”:



     1. Additional Defined Terms. The following additional defined terms shall be inserted in
Article I of the Partnership Agreement, in alphabetical order:



     “Adjustment Event” shall mean any of the following: (i) the Partnership makes a distribution
on all outstanding Common Partnership Units in Partnership Units, (ii) the Partnership subdivides
the outstanding Common Partnership Units into a greater number of units or combines the outstanding
Common Partnership Units into a smaller number of units, or (iii) the Partnership issues any
Partnership Units in exchange for its outstanding Common Partnership Units by way of a
reclassification or recapitalization of its Common Partnership Units. For the avoidance of doubt,
the following shall not be Adjustment Events: (x) the issuance of Partnership Units in a financing,
reorganization, acquisition or other similar business transaction, (y) the issuance of Partnership
Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or
(z) the issuance of any Partnership Units to the Company in respect of a capital contribution to
the Partnership of proceeds from the sale of securities by the Company.



     “Capital Account Limitation” shall have the meaning set forth in Section 7.9(b)
hereof.



     “Common Unit Distribution” shall have the meaning set forth in Section 4.3(d)(ii)
hereof.



     “Common Unit Economic Balance” shall mean (i) the Capital Account balance of the Company, plus
the amount of the Company’s share of any Partner Minimum Gain or Partnership Minimum Gain (as
defined in Exhibit B to this Agreement), in either case to the extent attributable to the
Company’s ownership of Common Partnership Units and computed on a hypothetical basis after taking
into account all allocations through the date on which any allocation is made under Section
A(12) of Exhibit B to the Partnership Agreement, divided by (ii) the number of the
Company’s Common Partnership Units.



     “Constituent Person” shall have the meaning set forth in Section 7.9(f) hereof.



     “Conversion Date” shall have the meaning set forth in Section 7.9(b) hereof.



     “Distribution Payment Date” shall mean the dates upon which the General Partner makes
distributions in accordance with Section 8.1 of the Partnership Agreement.



     “Distribution Period” shall mean any period to which a distribution pursuant to Section
8.1 relates.



     “Economic Capital Account Balance” of the PIU Unitholder will be equal to its Capital Account
balance, plus the amount of its share of any Partner Minimum Gain or Partnership Minimum Gain (as
defined in Exhibit B to the Partnership Agreement), in either case to the
extent attributable to its ownership of PIUs.



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     “PIU” means a Partnership Unit which is designated as a PIU and which has the rights,
preferences and other privileges designated in Section 4.3(d) hereof and elsewhere in the
Partnership Agreement in respect of the PIU Unitholder. The number of PIUs issued to the PIU
Unitholder shall be set forth on Exhibit A to the Partnership Agreement, as may be amended
from time to time.



     “PIU Unitholder” means Education Realty Limited Partner, LLC, a Delaware limited liability
company.



     “Plan” shall have the meaning set forth in the recitals to this Amendment.



     “Rights” shall mean rights, options, warrants or convertible or exchangeable securities
entitling the Company’s shareholders to subscribe for or purchase REIT Common Shares, or any other
securities or property.



     2. Amendments to Existing Definitions. The definition of “REIT Common Shares Amount” shall be
restated as follows:




“REIT COMMON SHARES AMOUNT” shall mean a whole number of REIT Common Shares equal to
the product of the number of Common Partnership Units offered for redemption by a
Redeeming Partner, multiplied by 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 the Company at
any time issues Rights to all holders of REIT Common Shares, 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.



     3. Conforming Changes. All references to the term “Common Partnership Units” in Section
4.3(a)(iii)(A) shall be changed to “PIUs.” Section 4.3(a)(iii)(B) shall be restated as follows:




(B) the aggregate number of Common Partnership Units and PIUs held by Education Realty
Limited Partner, LLC immediately after the issuance of such PIUs will not exceed two percent
(2%) of the aggregate issued and outstanding Common Partnership Units and PIUs immediately
after such issuance.



     4. Issuance of PIUs. Any Common Partnership Units held by the PIU Unitholder as of the
Effective Date shall be treated as PIUs. The following subsection (d) shall be appended to Section
4.3 of the Partnership Agreement:




     (d) ISSUANCE OF PIUs. The General Partner shall from time to time issue PIUs
to Education Realty Limited Partner, LLC on the account of its members who
provide services to the Company or the Partnership and who have received an award of Units
under the Company’s 2004 Incentive Plan, subject to such conditions as may be set



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forth in any award agreement entered into thereunder. Subject to the following provisions of this
Section 4.3(d) and the special provisions of Sections 7.9 and 7.10
and Section A(12) of Exhibit B to the Partnership Agreement, PIUs shall be
treated as Common Partnership Units, with all of the rights, privileges and obligations
attendant thereto. For purposes of computing the Partners’ Common Percentage Interests, the
PIU Unitholder shall be treated as a holder of Common Partnership Units and the PIUs shall
be treated as Common Partnership Units. In particular, the Partnership shall maintain at all
times a one-to-one correspondence between PIUs and Common Partnership Units for conversion,
distribution and other purposes, including without limitation complying with the following
procedures:




     (i) If an Adjustment Event occurs, then the General Partner shall make a
corresponding adjustment to the PIUs to maintain a one-for-one conversion and
economic equivalence ratio between Common Partnership Units and PIUs. If more than
one Adjustment Event occurs, the adjustment to the PIUs need be made only once using
a single formula that takes into account each and every Adjustment Event as if all
Adjustment Events occurred simultaneously. If the Partnership takes an action
affecting the Common Partnership Units other than actions specifically described as
Adjustment Events and in the opinion of the General Partner such action would
require an adjustment to the PIUs to maintain the one-to-one correspondence
described above, the General Partner shall have the right to make such adjustment to
the PIUs, to the extent permitted by law and by the Plan, in such manner and at such
time as the General Partner, in its sole discretion, may determine to be appropriate
under the circumstances. If an adjustment is made to the PIUs as herein provided,
the Partnership shall promptly file in the books and records of the Partnership an
officer’s certificate setting forth such adjustment and a brief statement of the
facts requiring such adjustment, which certificate shall be conclusive evidence of
the correctness of such adjustment absent manifest error. Promptly after filing such
certificate, the Partnership shall mail a notice to each member of the PIU
Unitholder setting forth the adjustment to his or her PIUs and the effective date of
such adjustment; and




     (ii) The PIU Unitholder shall, in respect of each Distribution Payment Date,
when, as and if authorized and declared by the General Partner out of assets legally
available for that purpose, be entitled to receive distributions in an amount per
PIU equal to the distributions per Common Partnership Unit (the “Common Unit
Distribution”), paid to holders of record on the same record date established by
the General Partner with respect to such Distribution Payment Date. During any
Distribution Period, so long as any PIUs are outstanding, no distributions (whether
in cash or in kind) shall be authorized, declared or paid on Common Partnership
Units, unless equal distributions have been or contemporaneously are authorized,
declared and paid on the PIUs for such Distribution Period. The PIUs shall rank
pari pasu with the Common Partnership Units as to the payment of regular and special
periodic or other distributions but shall be subordinate to the Common Partnership Units with respect to distributions upon liquidation of the
Partnership to the extent of their positive Capital Account balance, if any. As to



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the payment of distributions and as to distributions of assets upon liquidation,
dissolution or winding up, any class or series of Partnership Units or Partnership
Interests which by its terms specifies that it shall rank junior to, on a parity
with, or senior to the Common Partnership Units shall also rank junior to, or pari
pasu with, or senior to, as the case may be, the PIUs.




     PIUs shall be subject to the following special provisions:




     ALLOCATIONS. The PIU Unitholder shall be entitled to certain special
allocations of gain under Section A(12) of Exhibit B to the
Partnership Agreement.




     CONVERSION TO COMMON PARTNERSHIP UNITS. PIUs will be converted into Common
Partnership Units to the extent provided under Section 7.9.




     REDEMPTION. The Redemption Right provided to Limited Partners under
Section 7.4 shall not apply with respect to PIUs unless and until they are
converted to Common Partnership Units as provided under Section 7.9.




     VOTING. PIUs shall have the voting rights provided in Section 7.10.



     5. Conversion of PIUs. The following Section 7.9 shall be appended to Article VII of the
Partnership Agreement:



     Section 7.9 CONVERSION OF PIUs.




     (a) PIUs will automatically convert into an equal number of fully paid and non-assessable
Common Partnership Units, giving effect to all adjustments (if any) made pursuant to Section
4.3(d), at such time (a “Conversion Date”) (and from time to time) as the Economic
Capital Account Balance attributable to such PIUs is equal to the Common Unit Economic Balance, in
each case as determined as of the effective date of conversion (the “Capital Account
Limitation”). The General Partner shall provide notice to the PIU Unitholder, as provided in
Section 14.5, whenever the General Partner expects PIUs to convert into Common Partnership
Units pursuant to this Section 7.9. Notwithstanding anything herein to the contrary, the
PIU Unitholder may deliver a Redemption Notice pursuant to Section 7.4(a) relating to those
Common Partnership Units that will be issued to such holder upon conversion of such PIUs into
Common Partnership Units in advance of the Conversion Date; provided, however, that the redemption
of such Common Partnership Units by the Partnership shall in no event take place until after the
Conversion Date. For clarity, it is noted that the objective of this paragraph is to put the PIU
Unitholder in a position where, if it wishes, the Common Partnership Units into which the PIUs will
be converted can be redeemed by the Partnership simultaneously with such conversion, with the
further consequence that, if the Company elects to assume the Partnership’s redemption obligation
with respect to such Common Partnership Units under Section 7.4(b) by
delivering to the PIU Unitholder REIT Common Shares rather than cash, then the PIU Unitholder can
have such REIT Common Shares issued to it simultaneously with the conversion



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of the PIUs into Common Partnership Units. The General Partner shall cooperate with the PIU Unitholder to coordinate
the timing of the different events described in the foregoing sentence.



     (b) If the Partnership or the General Partner shall be a party to any Transaction, the PIUs
held by the PIU Unitholder will be converted (immediately prior to the consummation of the
Transaction) into a number of Common Partnership Units equal to the Economic Capital Account
Balance of the PIU Unitholder (to the extent attributable to its ownership of PIUs) divided by the
Common Unit Economic Balance. For this purposes, the Economic Capital Account Balance of the PIU
Unitholder will be adjusted by taking into account any allocations that occur in connection with
the Transaction or that would occur in connection with the Transaction if the assets of the
Partnership were sold at the Transaction price or, if applicable, at a value determined by the
General Partner in good faith using the value attributed to the Partnership Units in the context of
the Transaction (in which case the Conversion Date shall be the effective date of the Transaction).
In lieu of the foregoing, the documents effectuating a Transaction may provide for the
cancellation of the PIUs prior to their conversion into Common Partnership Units pursuant to this
Section 7.9(b) in exchange for a cash payment to the PIU Unitholder (or the appropriate
members of the PIU Unitholder) equal to the amount of the cash consideration payable in connection
with the Transaction to the holders of Common Partnership Units into which the PIUs would have been
converted pursuant to this Section 7.9(b).



     In anticipation of such conversion and the consummation of the Transaction, unless otherwise
provided in the applicable Transaction documents and subject to applicable securities laws, the
Partnership shall use commercially reasonable efforts to cause the PIU Unitholder to be afforded
the right to receive in connection with such Transaction, in consideration for the Common
Partnership Units into which its PIUs will be converted, the same kind and amount of cash,
securities and other property (or any combination thereof) receivable upon the consummation of such
Transaction by a holder of the same number of Common Partnership Units, assuming such holder of
Common Partnership Units is not a Person with which the Partnership consolidated or into which the
Partnership merged or which merged into the Partnership or to which such sale or transfer was made,
as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person.
Subject to the applicable Transaction documents and applicable securities laws, in the event that
holders of Common Partnership Units have the opportunity to elect the form or type of consideration
to be received upon consummation of the Transaction, prior to such Transaction the General Partner
may, in its sole discretion, give notice to the PIU Unitholder of such election in order to afford
the PIU Unitholder the right to elect, by written notice to the General Partner, the form or type
of consideration to be received upon conversion of each PIU held by the PIU Unitholder into Common
Partnership Units in connection with such Transaction. If the PIU Unitholder fails to make such an
election, it (and any transferee) shall receive upon conversion of each PIU held by it (or by
transferees), subject to the applicable Transaction documents and in the discretion of the General
Partner, either cash or the same kind and amount of consideration that a holder of a Common
Partnership Unit would receive if such Common Partnership Unit holder failed to make such an
election.



     Subject to the rights of the Partnership and the Company under the Plan, the Partnership
shall use commercially reasonable efforts to enter into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the PIU Unitholder with respect to those



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PIUs that will not be converted into Common Partnership Units in connection with the Transaction
that will (i) contain provisions enabling the holders of PIUs that remain outstanding after such
Transaction to convert their PIUs into securities as comparable as reasonably possible under the
circumstances to the Common Partnership Units and (ii) preserve as far as reasonably possible under
the circumstances the distribution, special allocation, conversion, and other rights set forth in
the Partnership Agreement for the benefit of the PIU Unitholder and the members thereof.



     (c) For purposes of making future allocations under Section A(12) of Exhibit B
of the Partnership Agreement and applying the Capital Account Limitation, the portion of the
Economic Capital Account balance of the PIU Unitholder that is treated as attributable to the PIUs
shall be reduced, as of the date of conversion, by the product of the number of PIUs converted and
the Common Unit Economic Balance.



     6. Voting Rights of PIUs. The following Section 7.10 shall be appended to Article VII
of the Partnership Agreement:



     7.10 VOTING RIGHTS OF PIUs. The PIU Unitholder shall (a) have those voting rights required
from time to time by applicable law, if any, (b) have the same voting rights as a holder of Common
Partnership Units, with the PIUs voting as a single class with the Common Partnership Units and
having one vote per PIU; and (c) have the additional voting rights that are expressly set forth in
this Section 7.10. So long as any PIUs remain outstanding, the Partnership shall not,
without the affirmative vote of the PIU Unitholder, either in writing or at a meeting (voting
separately as a class), amend, alter or repeal, whether by merger, consolidation or otherwise, the
provisions of the Partnership Agreement applicable to PIUs so as to materially and adversely affect
any right, privilege or voting power of the PIUs or the PIU Unitholder as such, unless such
amendment, alteration, or repeal affects equally, ratably and proportionately the rights,
privileges and voting powers of the holders of Common Partnership Units; but subject, in any event,
to the following provisions:




     (a) With respect to any Transaction, so long as the PIUs are treated in accordance with
Section 7.9(f) hereof, the consummation of such Transaction shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting powers of the
PIUs or the PIU Unitholder as such; and




     (b) Any creation or issuance of any Partnership Units or of any class or series of
Partnership Interest including without limitation additional Common Partnership Units, PIUs
or Preferred Units, whether ranking senior to, junior to, or on a parity with the PIUs with
respect to distributions and the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers of the PIUs or the PIU Unitholder as such.


The foregoing voting provisions will not apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required will be effected, all outstanding PIUs shall
have been converted into Common Partnership Units.




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     7. Footnote to Exhibit A. The Common Partnership Units of Education Realty Limited Partner,
LLC shall be footnoted as follows:




The Common Partnership Units held by Education Realty Limited Partner, LLC have been issued
as PIUs, and shall convert into fully paid and non-assessable Common Partnership Units as
provided in Section 7.9 of this Agreement.



     8. Special Allocation of Gain to PIU Unitholder. The following Section A(12) shall be appended
to Exhibit B (Federal Income Tax Matters) to the Partnership Agreement:



     (12) Notwithstanding the provisions of Article V of this Partnership Agreement, but subject to
the prior allocation of profits and gross items of income under Sections A(6) and
A(7) of this Exhibit B, any income or gain realized in connection with the actual
or hypothetical sale of all or substantially all of the assets of the Partnership, including but
not limited to income or gain realized in connection with an adjustment to the Agreed Value of
Partnership assets under Sections B(3) and (4) of this Exhibit B, shall first be allocated
to the PIU Unitholder until its Economic Capital Account Balance, to the extent attributable to its
ownership of PIUs, is equal to (i) the Common Unit Economic Balance (determined without regard to
any adjustment resulting from such actual or hypothetical sale), multiplied by (ii) the number of
its PIUs. The parties agree that the intent of this Section A(12) is to make the Capital
Account balances of the PIU Unitholder with respect to its PIUs economically equivalent to the
Capital Account balance of the Company with respect to its Common Partnership Units.



     9. Confirmation of Partnership Agreement. Except as modified herein, all terms and conditions
of the Partnership Agreement shall remain in full force and effect.



     IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date first
written above.



	 	 	 	 	 
	 	EDUCATION REALTY OP GP, INC., as general partner
 of
Education Realty Operating Partnership, LP

 	 
	 	By:  	/s/
Paul O. Bower	 
	 	 	Name:  	Paul O. Bower	 
	 	 	Title:  	President	 
	 




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