Exhibit 10.1





Exhibit 10.1




AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP



OF




EDUCATION REALTY OPERATING PARTNERSHIP, LP




DATED: January 31, 2005







 









 







AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

EDUCATION REALTY OPERATING PARTNERSHIP, LP




RECITALS:




Education Realty Operating Partnership, LP (the “Partnership”) was formed as a limited
partnership under the laws of the State of Delaware by the filing of a Certificate of Limited
Partnership with the Secretary of State of Delaware on January 31, 2005. The General Partner,
Education Realty OP Limited Partner Trust, a Maryland business trust, and Education Realty Limited
Partner, LLC, a Delaware limited liability company, entered into the Agreement of Limited
Partnership of the Partnership. The General Partner now desires to amend and restate such
agreement.



NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants between the parties
hereto, and of other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE I

DEFINED TERMS




Whenever used in this Agreement, the following terms shall have the meanings respectively
assigned to them in this Article I, unless otherwise expressly provided herein or unless the
context otherwise requires:



“Act” shall mean the Delaware Revised Uniform Limited Partnership Act, 6 Del C. § 17-101, et.
seq., as amended, supplemented or restated from time to time, and any successor to such statute.




“Additional Funds” has the meaning set forth in Section 4.4 hereof.



“Additional Limited Partner” shall mean a Person admitted to this Partnership as a Limited
Partner pursuant to and in accordance with this Agreement.




“Additional Securities” has the meaning set forth in Section 4.3(b).



“Affiliate” of another Person shall mean (a) any Person directly or indirectly owning,
controlling or holding with power to vote ten percent (10%) or more of the outstanding voting
securities of such other Person; (b) any Person ten percent (10%) or more of whose outstanding
voting securities are directly or indirectly owned, controlled or held with power to vote by such
other Person; (c) any Person directly or indirectly controlling, controlled by, or under common
control with, such other Person; (d) any officer, director, member or partner of such other Person;
and (e) if such other Person is an officer, director, member or partner in a company, the company
for which such Person acts in any such capacity.


 


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“Agreed Value” shall mean the fair market value of Contributed Property as agreed to by the
contributing partner and the Partnership, using such reasonable method of valuation as they may
adopt.



“Agreement” shall mean this Amended and Restated Agreement of Limited Partnership of Education
Realty Operating Partnership, LP, as amended from time to time.



“Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended, 11 U.S.C. §§ 101
ET SEQ., and as hereafter amended from time to time.




“Business Day” shall mean any day when the New York Stock Exchange is open for trading.



“Capital Account” shall mean, as to any Partner, the account established and maintained for
such Partner pursuant to Section 5.3 hereof.



“Capital Contribution” shall mean the amount in cash or the Agreed Value of Contributed
Property contributed by each Partner (or his original predecessor in interest) to the capital of
the Partnership for his interest in the Partnership.



“Capital Transaction” means any of (i) a transaction where any debt or liability to which a
Property is subject is refinanced; (ii) a sale or exchange of all or a part of a Property outside
of the ordinary course of the business of the Partnership, or (iii) the condemnation or casualty of
all or any part of any Property.



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



“Cash Flow” shall mean the excess of cash revenues actually received by the Partnership in
respect of Partnership operations for any period, and the amount of any reduction in reserves of
the Partnership, over Operating Expenses for such period. Cash Flow shall not include Disposition
Proceeds.



“Certificate of Incorporation” means the Certificate of Incorporation of the General Partner
filed with the Secretary of State of the State of Delaware, as amended or restated from time to
time.



“Code” shall mean the Internal Revenue Code of 1986, as amended, and as hereafter amended from
time to time. Reference to any particular provision of the Code shall mean that provision in the
Code at the date hereof and any succeeding provision of the Code.




“Commission” shall mean the U.S. Securities and Exchange Commission.



“Common Partnership Interest” shall mean an ownership interest in the Partnership, other than
a Preferred Partnership Interest, and includes any and all benefits to which the holder of such an
ownership interest may be entitled as provided in this Agreement or the Act, together with all
obligations of such Person to comply with the terms and provisions of this Agreement and the Act.



 


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“Common Partnership Unit” shall mean a fractional, undivided share of the Common Partnership
Interests of all Partners issued hereunder. At all times there shall be maintained an equivalency
of Common Partnership Units and REIT Common Shares, except as otherwise provided herein.



“Common Percentage Interest” shall mean the percentage ownership interest in the Common
Partnership Units of each Partner, as determined by dividing the Common Partnership Units owned by
a Partner by the total number of Common Partnership Units then outstanding.




“Company” means Education Realty Trust, Inc., a Maryland corporation.



“Contributed Property” shall mean a Partner’s interest in property or other consideration
(excluding services and cash) contributed to the Partnership by such Partner.



“Conversion Factor” shall mean 1.0; PROVIDED, HOWEVER, that in the event the Company (i)
declares or pays a dividend on its outstanding REIT Common Shares in REIT Common Shares or makes a
distribution to all holders of its outstanding REIT Common Shares in REIT Common Shares, (ii)
subdivides its outstanding REIT Common Shares, or (iii) combines its outstanding REIT Common Shares
into a smaller number of REIT Common Shares, the Conversion Factor shall be adjusted by multiplying
the Conversion Factor by a fraction, the numerator of which shall be the number of REIT Common
Shares issued and outstanding on the record date for such dividend, distribution, subdivision or
combination (assuming for such purposes that such dividend, distribution, subdivision or
combination has occurred as of such time), and the denominator of which shall be the actual number
of REIT Common Shares (determined without the above assumption) issued and outstanding on the
record date for such dividend, distribution, subdivision or combination. Any adjustment to the
Conversion Factor shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event; PROVIDED, HOWEVER, that if the General
Partner receives a Notice of Redemption after the record date, but prior to the effective date of
such dividend, distribution, subdivision or combination, the Conversion Factor shall be determined
as if the General Partner had received the Notice of Redemption immediately prior to the record
date for such dividend, distribution, subdivision or combination.



“Disposition Proceeds” shall mean proceeds received by the Partnership as a result of a
Capital Transaction decreased by the amount of such proceeds applied to (i) pay all debts and
liabilities of the Partnership that are required to be repaid as a result of such Capital
Transaction and any debts and liabilities which the General Partner elects to cause the Partnership
to pay with such proceeds; (ii) the costs and expenses of the Capital Transaction; and (iii) the
establishment or increase of reasonable reserves.



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


 


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“Event of Bankruptcy” shall mean as to any Person the filing of a petition for relief as to
such Person as debtor or bankrupt under the Bankruptcy Code or similar provision of law of any
jurisdiction (except if such petition is contested by such Person and has been dismissed within
ninety (90) days of the filing thereof); insolvency of such Person as finally determined by
a court of competent jurisdiction; filing by such Person of a petition or application to
accomplish the same or for the appointment of a receiver or a trustee for such Person or a
substantial part of such Person’s assets; commencement of any proceedings relating to such Person
as a debtor under any other reorganization, arrangement, insolvency, adjustment of debt or
liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by
such Person or by another, but if such proceeding is commenced by another, only if such Person
indicates his approval of such proceeding, or such proceeding is contested by such Person and has
not been finally dismissed within ninety (90) days.



“General Partner” shall mean Education Realty OP GP, Inc., a Delaware corporation, and any
Person who becomes a substitute or additional General Partner as provided herein, and any of their
successors as General Partner.



“General Partnership Interest” shall mean the ownership interest of a General Partner in the
Partnership.



“Government Obligations” shall mean securities that are (i) direct obligations of the United
States of America, for the payment of which its full faith and credit is pledged, or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, that are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust
as custodian with respect to any such obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation evidenced by such depository
receipt.



“Indemnitee” shall mean (i) any Person made a party to a proceeding by reason of his or her
status as (A) the General Partner or (B) a director, officer, employee or agent of the Partnership
or the General Partner, and (ii) such other Persons (including Affiliates of the General Partner or
the Partnership) as the General Partner may designate from time to time (whether before or after
the event giving rise to potential liability), in its sole and absolute discretion.



“Initial Contributed Assets” shall mean those properties identified as Initial Contributed
Assets on Exhibit A hereto.




“IRS” shall mean the Internal Revenue Service.



“Limited Partner” shall mean any Person named as a Limited Partner on Exhibit A
attached hereto and any Person who becomes a Substitute Limited Partner pursuant to Section 9.6
hereof or an Additional Limited Partner, in such Person’s capacity as a Limited Partner in the
Partnership.


 


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“Limited Partnership Interest” shall mean the ownership interest of a Limited Partner in the
Partnership at any particular time, including the right of such Limited Partner to any and
all benefits to which such Limited Partner may be entitled as provided in this Agreement and
in the Act, together with the obligations of such Limited Partner to comply with all the provisions
of this Agreement and of the Act.



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



“Offering” shall mean the offer and sale by the Company of REIT Common Shares for sale to the
public pursuant to the Prospectus.



“Operating Expenses” shall mean (i) all administrative and operating costs and expenses
incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner,
including any salaries or other payments to directors, officers or employees of the General
Partner, and any accounting and legal expense of the General Partner, which expenses, the Partners
have agreed, are expenses of the Partnership and not the General Partner, and (iii) to the extent
not included in clause (ii) above, REIT Expenses; PROVIDED, HOWEVER, that Operating Expenses shall
not include any administrative costs and expenses incurred by the General Partner that are
attributable to Properties or partnership interests in a Subsidiary that are owned by the General
Partner or the Company directly.




“Partner” shall mean the General Partner or any Limited Partner.



“Partnership” shall mean Education Realty Operating Partnership, LP, a Delaware limited
partnership.



“Partnership Interest” shall mean an ownership interest in the Partnership and includes any
and all benefits to which the holder of such an ownership interest may be entitled as provided in
this Agreement or the Act, together with all obligations of such Person to comply with the terms
and provisions of this Agreement and the Act.



“Partnership Record Date” shall mean the record date established by the General Partner for
the distribution of Cash Flow pursuant to Section 8.1 hereof, which record date shall be the same
as the record date established by the General Partner for a distribution to its shareholder of some
or all of its portion of such distribution.



“Partnership Unit” means a Common Partnership Unit, a Preferred Partnership Unit or an other
fractional, undivided share of the Partnership Interests that the General Partner has authorized
pursuant to this Agreement. The Partnership Units of the Partners shall be set forth on Exhibit
A, as may be amended from time to time.



“Person” shall mean any individual, partnership, corporation, limited liability company, trust
or other entity.



“Preferred Partnership Interest” shall mean an ownership interest in the Partnership, having a
preference in payment of distributions or on liquidation, and includes any and all benefits to
which the holder of such an ownership interest may be entitled as provided in this Agreement or the
Act, together with all obligations of such Person to comply with the terms and provisions of this
Agreement and the Act.


 


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“Preferred Partnership Unit” shall mean a fractional, undivided share of the Preferred
Partnership Interests of all Partners issued hereunder.



“Preferred Percentage Interest” shall mean the percentage ownership interest in the Preferred
Partnership Units of each Partner, as determined by dividing the Preferred Partnership Units owned
by a Partner by the total number of Preferred Partnership Units then outstanding.



“Property” shall mean any property or other investment in which the Partnership holds a direct
or indirect ownership interest.



“Prospectus” shall mean the final prospectus, dated January 26, 2005, delivered to purchasers
of REIT Shares in the Offering.




“Redeeming Partner” shall have the meaning provided in Section 7.4(a) hereof.




“Redemption Right” shall have the meaning provided in Section 7.4(a) hereof.



“REIT” shall mean a real estate investment trust under Sections 856 through 860, inclusive, of
the Code.




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



“REIT Common Shares Amount” shall mean (a) with respect to any Limited Partner other than
Education Realty Limited Partner, LLC, 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), and (b) with respect to Education Realty
Limited Partner, LLC, a whole number of REIT Common Shares equal to the product of (i) the number
of Common Partnership Units offered for redemption by Education Realty Limited Partner, LLC;
multiplied by (ii) the quotient of Education Realty Limited Partner, LLC’s Capital Account balance
immediately prior to such redemption (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 Education Realty Limited Partner, LLC through the Specified Redemption Date)
divided by the product of the number of Common Partnership Units held by Education Realty Limited
Partner, LLC 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 the Company 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.


 


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“REIT Expenses” means (i) costs and expenses relating to the formation and continuity of
existence of the Company and any Subsidiaries thereof (which Subsidiaries shall, for purposes
hereof, be included within the definition of Company), including taxes, fees and assessments
associated therewith, any and all costs, expenses or fees payable to any director, officer, or
employee of the Company, (ii) costs and expenses relating to the public offering and registration
of securities or private offering of securities by the Company and all statements, reports, fees
and expenses incidental thereto, including underwriting discounts and selling commissions
applicable to any such offering of securities, (iii) costs and expenses associated with the
preparation and filing of any periodic reports by the Company under federal, state or local laws or
regulations, including filings with the Commission, (iv) costs and expenses associated with
compliance by the Company with laws, rules and regulations promulgated by any regulatory body,
including the Commission, and (v) all other operating or administrative costs of the Company,
including, without limitation, insurance premiums, and legal, accounting and directors’ fees,
incurred in the ordinary course of its business on behalf of or in connection with the Partnership.




“REIT Preferred Share” shall mean a share of the preferred shares of the Company.




“REIT
Share” shall mean a REIT Common Share or a REIT Preferred Share.



“Specified Redemption Date” shall mean, with respect to a given Partner, the tenth (10th)
Business Day after receipt by the General Partner of a Notice of Redemption, provided that no
Specified Redemption Date may occur with respect to any Unit before one year after such Unit is
issued by the Partnership.



“Subsidiary” shall mean, with respect to any Person, any corporation or other entity of which
a majority of (i) the voting power of the voting equity securities, or (ii) the outstanding equity
interests, are owned, directly or indirectly, by such Person.




“Substitute General Partner” has the meaning set forth in Section 9.2.



“Substitute Limited Partner” shall mean any Person admitted to the Partnership as a Limited
Partner pursuant to Section 9.6 hereof.




“Surviving Partner” has the meaning set forth in Section 9.1(c) hereof.




“Transaction”
has the meaning set forth in Section 9.1(b) hereof.




“Transfer”
has the meaning set forth in Section 9.5(a) hereof.



“Treasury Regulations” shall mean the federal income tax regulations, including temporary
regulations, promulgated under the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).



“Valuation Date” shall mean the date of receipt by the General Partner of a Notice of
Redemption or, if such date is not a Business Day, the first Business Day thereafter


 


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“Value” shall mean, with respect to a REIT Common Share, the average of the daily market price
for the ten (10) consecutive trading days immediately preceding the Valuation Date. The market
price for each such trading day shall be: (i) if the REIT Common Shares are listed or admitted to
trading on any securities exchange or the NASDAQ National Market System, the closing price, regular
way, on such day, or if no such sale takes place on such day, the average of
the closing bid and asked prices on such day; (ii) if the REIT Common Shares are not listed or
admitted to trading on any securities exchange or the NASDAQ National Market System, the last
reported sale price on such day or, if no sale takes place on such day, the average of the closing
bid and asked prices on such day, as reported by a reliable quotation source designated by the
General Partner; or (iii) if the REIT Common Shares are not listed or admitted to trading on any
securities exchange or the NASDAQ National Market System and no such last reported sale price or
closing bid and asked prices are available, the average of the reported high bid and low asked
prices on such day, as reported by a reliable quotation source designated by the General Partner,
or if there shall be no bid and asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in
question) for which prices have been so reported; PROVIDED, HOWEVER, that if there are no bid and
asked prices reported during the ten (10) days prior to the date in question, the Value of the REIT
Common Shares shall be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment, appropriate. In the
event the REIT Common Shares Amount includes rights that a holder of REIT Common Shares would be
entitled to receive, and the General Partner acting in good faith determines that the value of such
rights is not reflected in the Value of the REIT Common Shares determined as aforesaid, then the
Value of such rights shall be determined by the General Partner acting in good faith on the basis
of such quotations and other information as it considers, in its reasonable judgment, appropriate.



ARTICLE II

PARTNERSHIP CONTINUATION; ADMISSION OF LIMITED PARTNERS;

NAME; PLACE OF BUSINESS AND REGISTERED AGENT




Section 2.1 CONTINUATION. The Partners hereby agree to continue the Partnership pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement. Except as
expressly provided herein, the rights and obligations of the Partners and the administration and
termination of the Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.



Section 2.2 CERTIFICATE OF LIMITED PARTNERSHIP; OTHER FILINGS. The General Partner shall
prepare (or caused to be prepared), execute, acknowledge, record and file at the expense of the
Partnership, a Certificate of Limited Partnership and all requisite fictitious name statements and
notices in such places and jurisdictions as may be required by the Act or necessary to cause the
Partnership to be treated as a limited partnership under, and otherwise to comply with, the laws of
each state or other jurisdiction in which the Partnership conducts business.



Section 2.3 ADDITIONAL LIMITED PARTNERS. The General Partner shall in timely fashion amend
this Agreement and, if required by the Act, the Certificate of Limited Partnership filed for record
to reflect the admission pursuant to the terms of this Agreement of a Person as a Limited Partner.


 


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Section 2.4 NAME, OFFICE AND REGISTERED AGENT. The name of the Partnership shall be Education
Realty Operating Partnership, LP The principal place of business of the Partnership shall be at 530
Oak Court Drive, Memphis, Tennessee 38117. The General
Partner may at any time change the location of such office, provided the General Partner gives
notice to the Partners of any such change. The name and address of the Partnership’s statutory
agent for service of process on the Partnership in Delaware is The Corporation Trust Company. The
name and address of the Partnership’s statutory agent for service of process on the Partnership in
Delaware is 1209 Orange Street, Wilmington, Delaware 19801.



ARTICLE III

BUSINESS AND TERM OF PARTNERSHIP




Section 3.1 BUSINESS. The purpose and nature of the business of the Partnership is to conduct
any business that may lawfully be conducted by a limited partnership organized pursuant to the Act;
PROVIDED, HOWEVER, that such business shall be limited to and conducted in such a manner as to
permit the Company at all times to be qualified as a REIT under the Code, unless the board of
directors of the Company determines to cease to qualify as a REIT. To consummate the foregoing and
to carry out the obligations of the Partnership in connection therewith or incidental thereto, the
General Partner shall have the authority, in accordance with and subject to the limitations set
forth elsewhere in this Agreement, to make, enter into, perform and carry out any arrangements,
contracts or agreements of every kind for any lawful purpose, without limit as to amount or
otherwise, with any corporation, association, partnership, limited liability company, firm,
trustee, syndicate, individual or any political or governmental division, subdivision or agency,
domestic or foreign, and generally to make and perform agreements and contracts of every kind and
description and to do any and all things necessary or incidental to the foregoing for the
protection and enhancement of the assets of the Partnership.



Section 3.2 TERM. The Partnership as herein constituted shall continue in perpetuity and
shall have perpetual existence, unless earlier dissolved or terminated pursuant to law or the
provisions of this Agreement.



ARTICLE IV

CAPITAL CONTRIBUTIONS




Section 4.1 GENERAL PARTNER. The General Partner has contributed the property identified on
Exhibit A attached hereto to the capital of the Partnership.



Section 4.2 LIMITED PARTNERS. The Limited Partners have contributed cash or their respective
ownership interests in the Contributed Property to the Partnership as identified on Exhibit
A attached hereto. The Agreed Values of the Limited Partners’ proportionate ownership interest
in the Contributed Properties as of the date of contribution are set forth on Exhibit A
attached hereto.



Section 4.3 ADDITIONAL CAPITAL CONTRIBUTIONS AND ISSUANCES OF ADDITIONAL PARTNERSHIP
INTERESTS. The Partners shall have no preemptive or other right or obligation to make any
additional Capital Contributions or loans to the Partnership. Any of the General Partner, Education
Realty OP Limited Partner or Education Realty Limited Partner, LLC may contribute additional
capital or property to the Partnership, from time to time,
and receive additional Partnership Interests in respect thereof, in the manner contemplated in
this Section 4.3.


 


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(a) ISSUANCES OF ADDITIONAL PARTNERSHIP INTERESTS.




(i) GENERAL. The General Partner is hereby authorized to cause the Partnership
to issue such additional Partnership Interests in the form of Common Partnership Units and
Preferred Partnership Units for any Partnership purpose at any time or from time to time, to
the Partners or to other Persons for such consideration and on such terms and conditions as
shall be established by the General Partner in its sole and absolute discretion, all without
the approval of any of the Limited Partners. Any additional Partnership Interest issued
thereby may be issued in one or more classes, or one or more series of any of such classes,
with such designations, preferences and relative, participating, optional or other special
rights, powers and duties, including rights, powers and duties senior to Limited Partnership
Interests, all as shall be determined by the General Partner in its sole and absolute
discretion and without the approval of any Limited Partner, subject to Delaware law, and all
as shall be set forth in an Exhibit to this Agreement, which Exhibit shall be incorporated
into and become part of this Agreement upon adoption by the General Partner, including,
without limitation, (i) the allocations of items of Partnership income, gain, loss,
deduction and credit to each such class or series of Partnership Interests; (ii) the right
of each such class or series of Partnership Interests to share in Partnership distributions;
(iii) the rights of each class or series of Partnership Interests upon dissolution and
liquidation of the Partnership and (iv) the right to vote; PROVIDED, HOWEVER, that no
additional Partnership Interests shall be issued to the Company, the General Partner,
Education Realty OP Limited Partner Trust or Education Realty Limited Partner, LLC unless:




(ii) In the case of the Company, the General Partner or Education Realty OP Limited
Partner Trust, either (A)(1) the additional Partnership Interests are issued in connection
with an issuance of REIT Shares or other interests in the Company, all such that the
economic interests of such REIT Shares are substantially similar to the designations,
preferences and other rights of the additional Partnership Interests issued to the Company
or any of its Affiliates (including, without limitation, the General Partner and Education
Realty OP Limited Partner Trust) in accordance with this Section 4.3, (2) the Company shall
make, directly or through one of its Affiliates (including, without limitation, the General
Partner and Education Realty OP Limited Partner Trust), a Capital Contribution to the
Partnership in an amount equal to the proceeds raised or other property received by the
Company, directly or through one or more Affiliates, in connection with the issuance of such
 shares or other interests in the Company and (3) the additional Partnership Interests are
issued in exchange for property owned by the Company or its Affiliates (including, without
limitation, the General Partner and Education Realty OP Limited Partner Trust) with a fair
market value, as determined by the General Partner, in good faith, equal to the value of the
Partnership Interests, or (B) the additional Partnership Interests are issued to all
Partners in proportion to their respective Common Percentage Interests or Preferred
Percentage Interests, as applicable.


 


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(iii) In the case of Education Realty Limited Partner, LLC, (A) such additional
Partnership Interests are issued as Common Partnership Units and represent only a profits
interest in the Partnership upon issuance (i.e., such Common Partnership Units entitle
Education Realty Limited Pat titer, LLC to no right to receive any share of the value of the
Partnership’s assets as of the date of the issuance of such Common Partnership Units and
entitle Education Realty Limited Partner, LLC only the right to receive any profits or
appreciation that are earned by the Partnership or which inure to the Partnership’s assets
after the date of the issuance of such Common Partnership Units) and (B) the aggregate
number of Common Partnership Units held by Education Realty Limited Partner, LLC immediately
after the issuance of such Common Partnership Units will not exceed two percent (2%) of the
aggregate issued and outstanding Common Partnership Units immediately after such issuance.



Without limiting the foregoing, the General Partner is expressly authorized to cause the
Partnership to issue Common Partnership Units or Preferred Partnership Units for less than fair
market value, so long as the General Partner concludes in good faith that such issuance is in the
best interests of the Company and the Partnership.




(b) UPON ISSUANCE OF ADDITIONAL SECURITIES. After the Offering, the Company
shall not issue any additional REIT Shares (other than REIT Shares issued in connection with
a redemption pursuant to Section 7.4 hereof) or rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe for or purchase REIT Shares
(collectively, “Additional Securities”) other than to all holders of REIT Shares, unless (A)
the General Partner shall cause the Partnership to issue to the Company or its Affiliates,
Partnership Interests or rights, options, warrants or convertible or exchangeable securities
of the Partnership having designations, preferences and other rights, all such that the
economic interests are substantially similar to those of the Additional Securities, and (B)
the Company contributes, directly or through one or more Affiliates, the proceeds or other
property received from the issuance of such Additional Securities and from any exercise of
rights contained in such Additional Securities to the Partnership.



Without limiting the foregoing, the Company may issue Additional Securities for less than fair
market value, and as a result the General Partner is expressly authorized to cause the Partnership
to issue to the Company or its Affiliates corresponding Partnership Interests, so long as (x) the
Company concludes in good faith that such issuance is in the best interests of the Company and the
Partnership, and (y) the Company, directly or through one or more Affiliates, contributes all
proceeds or other property received from such issuance to the Partnership. For example, in the
event the Company issues REIT Common Shares for a cash purchase price and contributes, directly or
through one or more Affiliates, all of the proceeds of such issuance to the Partnership as required
hereunder, the Company or its Affiliates shall be issued a number of additional Common Partnership
Units equal to the product of (A) the number of such REIT Common Shares issued by the Company, the
proceeds of which were so contributed, multiplied by (B) a fraction, the numerator of which is
100%, and the denominator of which is the Conversion Factor in effect on the date of such
contribution.



 


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(c) CERTAIN DEEMED CONTRIBUTIONS OF PROCEEDS OF ISSUANCE OF REIT SHARES. In
connection with any and all issuances of REIT Shares, the Company, directly or through one
or more Affiliates, shall contribute all of the proceeds raised in connection with such
issuance to the Partnership as Capital Contributions, PROVIDED THAT if the proceeds actually
received and contributed by the Company or its Affiliates are less than the gross proceeds
of such issuance as a result of any underwriter’s discount or other expenses paid or
incurred in connection with such issuance, then the Company, directly or through one or more
Affiliates, shall be deemed to have made Capital Contributions to the Partnership in the
aggregate amount of the gross proceeds of such issuance and the Partnership shall be deemed
simultaneously to have paid such offering expenses in connection with the required issuance
of additional Partnership Units to the Company or its Affiliates for such Capital
Contributions pursuant to Section 4.3(a) hereof.



Section 4.4 ADDITIONAL FUNDING. If the General Partner determines that it is in the best
interests of the Partnership to provide for additional Partnership funds (“Additional Funds”) for
any Partnership purpose, the General Partner may (i) cause the Partnership to obtain such funds
from outside borrowings, or (ii) elect to have the General Partner provide such Additional Funds to
the Partnership through loans or otherwise.




Section 4.5 INTEREST. No interest shall be paid on the Capital Contribution of any Partner.



Section 4.6 RETURN OF CAPITAL. Except as expressly provided in this Agreement, no Partner
shall be entitled to demand or receive the return of his Capital Contribution.



Section 4.7 PERCENTAGE INTEREST. If the number of outstanding Common Partnership Units
increases or decreases during a taxable year, the General Partner shall adjust each holder of
Common Partnership Units’ Percentage Interest, as reflected on Exhibit A, to a percentage
equal to the number of Common Partnership Units held by such Partner divided by the aggregate
number of outstanding Common Partnership Units.



ARTICLE V

PROFITS, LOSSES AND ACCOUNTING




Section 5.1 ALLOCATION OF PROFITS AND LOSSES. Except as otherwise provided herein or in
Exhibit B, profits earned and losses incurred by the Partnership shall be allocated among
the Partners as follows:



(a) Profits for each year shall be allocated among the Partners, and shall be credited to the
respective Capital Accounts of the Partners, in the following order and priority:



(i) First, to the Partners to the extent of losses, in the proportions and in the reverse
order in which losses were allocated to them pursuant to Section 5.1(b), until the cumulative
amounts allocated to each Partner pursuant to this Section 5.1(a)(i) are equal to the cumulative
losses so allocated to such Partner; and


 


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(ii) Second, any remaining profits shall be allocated to the holders of Common Partnership
Units in accordance with their Common Percentage Interests.



(b) Losses for each year shall be allocated among the Partners, and shall be debited to the
respective Capital Accounts of the Partners, in the following order and priority:



(i) First, to the holders of Common Partnership Units pro rata in accordance with, and to the
extent of, the positive balances in their Adjusted Capital Account Balances (as defined in
Exhibit B hereto) attributable to Common Partnership Units; and



(ii) Thereafter any remaining losses will be allocated to the holders of Common Partnership
Units in accordance with their Common Percentage Interests.



(c) In the event that the Partnership issues additional Partnership Units pursuant to the
provisions of this Agreement, the General Partner is hereby authorized to make revisions to this
Section 5.1 as it determines are necessary or desirable to reflect the terms of the issuance of
such additional Partnership Units, including, without limitation, making preferential allocations
to certain classes of Partnership Units.




Section 5.2
ACCOUNTING.



(a) The books of the Partnership shall be kept on the accrual basis and in accordance with
generally accepted accounting principles consistently applied.




(b) The fiscal year of the Partnership shall be the calendar year.



(c) The terms “profits” and “losses,” as used herein, shall mean all items of income, gain,
expense or loss as determined utilizing federal income tax accounting principles and shall also
include each Partner’s share of income described in Section 705(a)(1)(B) of the Code, any
expenditures described in Section 705(a)(2)(B) of the Code, any expenditures described in Section
709(a) of the Code which are not deducted or amortized in accordance with Section 709(b) of the
Code, losses not deductible pursuant to Sections 267(a) and 707(b) of the Code and adjustments made
pursuant to Exhibit B attached hereto.



(d) The General Partner shall be the Tax Matters Partner of the Partnership within the meaning
of Section 6231(a)(7) of the Code. As Tax Matters Partner, the General Partner shall have the right
and obligation to take all actions authorized and required, respectively, by the Code for the Tax
Matters Partner. The General Partner shall have the right to retain professional assistance in
respect of any audit of the Partnership by the IRS, and all out-of-pocket expenses and fees
incurred by the General Partner on behalf of the Partnership as Tax Matters Partner shall
constitute Operating Expenses of the Partnership. In the event the General Partner receives notice
of a final Partnership adjustment under Section 6223(a)(2) of the Code, the General Partner shall
either (i) file a court petition for judicial review of such final adjustment within the period
provided under Section 6226(a) of the Code, a copy of which petition shall be mailed to each
Limited Partner on the date such petition is filed, or (ii) mail a written notice to each Limited
Partner, within such period, that describes the General Partner’s reasons for determining not to
file such a petition.


 


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(e) Except as specifically provided herein, all elections required or permitted to be made by
the Partnership under the Code shall be made by the General Partner in its sole discretion.



(f) Any Partner shall have the right to inspect the books and records of the Partnership,
provided such audit is made at the expense of the Partner desiring it, such inspection is made
during normal business hours and such audit is for a purpose reasonably related to such Partner’s
legitimate interest as a Partner.




Section 5.3 PARTNERS’ CAPITAL ACCOUNTS.



(a) There shall be maintained a Capital Account for each Partner in accordance with this
Section 5.3 and the principles set forth in Exhibit B attached hereto and made a part
hereof The amount of cash and the Agreed Value of property contributed to the Partnership by each
Partner, net of liabilities assumed by the Partnership or securing property contributed by such
Partner, shall be credited to its Capital Account, and from time to time, but not less often than
annually, the share of each Partner in profits, losses and fair market value of distributions shall
be credited or charged to its Capital Account. The determination of Partners’ Capital Accounts, and
any adjustments thereto, shall be made consistent with tax accounting and other principles set
forth in Section 704(b) of the Code and applicable regulations thereunder and Exhibit B
attached hereto.



(b) Except as otherwise specifically provided herein or in a guarantee of a Partnership
liability, signed by a Limited Partner, no Limited Partner shall be required to make any further
contribution to the capital of the Partnership to restore a loss, to discharge any liability of the
Partnership or for any other purpose, nor shall any Limited Partner personally be liable for any
liabilities of the Partnership or of the General Partner except as provided by law or this
Agreement. All Limited Partners hereby waive their right of contribution which they may have
against other Partners in respect of any payments made by them under any guarantee of Partnership
debt.



(c) Immediately following the transfer of any Partnership Interest, the Capital Account of the
transferee Partner shall be equal to the Capital Account of the transferor Partner attributable to
the transferred interest, and such Capital Account shall not be adjusted to reflect any basis
adjustment under Section 743 of the Code.



(d) For purposes of computing the amount of any item of income, gain, deduction or loss to be
reflected in the Partners’ Capital Accounts, the determination, recognition and classification of
any such item shall be the same as its determination, recognition and classification for federal
income tax purposes, taking into account any adjustments required pursuant to Section 704(b) of the
Code and the applicable regulations thereunder as more fully described in Exhibit B
attached hereto.



Section 5.4 SECTION 754 ELECTIONS. The General Partner may elect, pursuant to Section 754 of
the Code, to adjust the basis of the Partnership’s assets for all transfers of Partnership
Interests if such election would benefit any Partner or the Partnership.


 


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ARTICLE VI

POWERS, DUTIES, LIABILITIES, COMPENSATION AND VOTING

OF GENERAL PARTNER




Section 6.1 POWERS OF GENERAL PARTNER. Notwithstanding any provision of this Agreement to the
contrary, the General Partner’s discretion and authority are subject to the limitations imposed by
law, and by the Certificate of Incorporation and bylaws. Subject to the foregoing and to other
limitations imposed by this Agreement, the General Partner shall have full, complete and exclusive
discretion to manage and control the business and affairs of the Partnership and make all decisions
affecting the business and assets of the Partnership. Without limiting the generality of the
foregoing (but subject to the restrictions specifically contained in this Agreement), the General
Partner shall have the power and authority to take the following actions on behalf of the
Partnership:



(a) to acquire, purchase, own, manage, operate, lease and dispose of any real property and any
other property or assets that the General Partner determines are necessary or appropriate or in the
best interests of conducting the business of the Partnership in each case not inconsistent with the
Company’s qualification as a REIT;



(b) to construct buildings and make other improvements (including renovations) on or to the
properties owned or leased directly or indirectly by the Partnership;



(c) to borrow money for the Partnership, issue evidences of indebtedness in connection
therewith, refinance, guarantee, increase the amount of, modify, amend or change the terms of, or
extend the time for the payment of, any indebtedness or obligation of or to the Partnership, and
secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Partnership’s
assets;



(d) to pay, either directly or by reimbursement, for all Operating Expenses to third parties
or to the General Partner (as set forth in this Agreement);



(e) to lease all or any portion of any of the Partnership’s assets, whether or not the terms
of such leases extend beyond the termination date of the Partnership and whether or not any portion
of the Partnership’s assets so leased are to be occupied by the lessee, or, in turn, subleased in
whole or in part to others, for such consideration and on such terms as the General Partner may
determine;



(f) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor
of or against the Partnership, on such terms and in such manner as the General Partner may
reasonably determine, and similarly to prosecute, settle or defend litigation with respect to the
Partners, the Partnership, or the Partnership’s assets;



(g) to file applications, communicate, and otherwise deal with any and all governmental
agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other
aspect of the Partnership business;



(h) to make or revoke any election permitted or required of the Partnership by any taxing
authority;


 


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(i) to maintain such insurance coverage for public liability, fire and casualty, and any and
all other insurance for the protection of the Partnership, for the conservation of Partnership
assets, or for any other purpose convenient or beneficial to the Partnership, in such amounts and
such types as the General Partner shall determine from time to time;



(j) to determine whether or not to apply any insurance proceeds for any Property to the
restoration of such Property or to distribute the same;



(k) to retain providers of services of any kind or nature in connection with the Partnership
business and to pay therefor such reasonable remuneration as the General Partner may deem proper;



(l) to negotiate and conclude agreements on behalf of the Partnership with respect to any of
the rights, powers and authority conferred upon the General Partner, including, without limitation,
management agreements, development agreements and agreements with public and private colleges and
universities;



(m) to maintain accurate accounting records and to file promptly all federal, state and local
income tax returns on behalf of the Partnership;



(n) to form or acquire an interest in, and contribute property to, any further limited or
general partnerships, joint ventures or other relationships that it deems desirable (including,
without limitation, the acquisition of interests in, and the contributions of property to, its
Subsidiaries and any other Person in which it has an equity interest from time to time);



(o) to distribute Partnership cash or other Partnership assets in accordance with this
Agreement;



(p) to establish Partnership reserves for working capital, capital expenditures, contingent
liabilities or any other valid Partnership purpose;



(q) to authorize, issue, sell, redeem or otherwise purchase any Partnership Interests or any
securities (including secured and unsecured debt obligations of the Partnership, debt obligations
of the Partnership convertible into any class or series of Partnership Interests, or options,
rights, warrants or appreciation rights relating to any Partnership Interests) of the Partnership;



(r) subject to the provisions of Section 9.1, to merge, consolidate or combine the Partnership
with or into another Person (to the extent permitted by applicable law);



(s) to do any and all acts and things necessary or prudent to ensure that the Partnership will
not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code;




(t) to issue additional Partnership Interests pursuant to Section 4.3 hereof,



(u) to pay cash to redeem Partnership Units held by a Limited Partner in connection with a
Limited Partner’s exercise of its Redemption Right under Section 7.4 hereof;


 


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(v) to amend and restate Exhibit A hereto to reflect accurately at all times the
Capital Contributions, Common Percentage Interests and Preferred Percentage Interests of the
Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions,
Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited
Partner or any Substitute Limited Partner or otherwise, which amendment and restatement,
notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to
this Agreement, as long as the matter or event being reflected in Exhibit A hereto
otherwise is authorized by this Agreement;



(w) to take whatever action the General Partner deems appropriate to maintain the economic
equivalency of Common Partnership Units and REIT Common Shares and Preferred Partnership Units and
REIT Preferred Shares, respectively; and



(x) to take such other action, execute, acknowledge, swear to or deliver such other documents
and instruments, and perform any and all other acts the General Partner deems necessary or
appropriate for the formation, continuation and conduct of the business and affairs of the
Partnership (including, without limitation, all actions consistent with qualification of the
Company as a REIT) and to possess and enjoy all of the rights and powers of a general partner as
provided by the Act.



Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver
and perform the above-mentioned agreements and transactions on behalf of the Partnership without
any further act, approval or vote of the Partners, notwithstanding any other provision of this
Agreement (except as provided in this Section 6.1(r), Section 9.1 or Article XI), the Act or any
applicable law, rule or regulation to the fullest extent permitted under the Act or other
applicable law, rule or regulation. The execution, delivery or performance by the General Partner
or the Partnership of any agreement authorized or permitted under this Agreement shall not
constitute a breach by the General Partner of any duty that the General Partner may owe the
Partnership or the Limited Partners or any other persons under this Agreement or of any duty stated
or implied by law or equity.



Except as otherwise provided herein, to the extent the duties of the General Partner require
expenditures of funds to be paid to third parties, the General Partner shall not have any
obligations hereunder except to the extent that Partnership funds are reasonably available to it
for the performance of such duties, and nothing herein contained shall be deemed to authorize or
require the General Partner, in its capacity as such, to expend its individual funds for payment to
third parties or to undertake any individual liability or obligation on behalf of the Partnership.



Section 6.2 DELEGATION OF AUTHORITY. The General Partner may delegate any or all of its
powers, rights and obligations hereunder, and may appoint, employ, contract or otherwise deal with
any Person for the transaction of the business of the Partnership, which Person may, under
supervision of the General Partner, perform any acts or services for the Partnership as the General
Partner may approve.


 


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Section 6.3 DUTIES OF GENERAL PARTNER.



(a) The General Partner, subject to the limitations contained elsewhere in this Agreement,
shall manage or cause to be managed the affairs of the Partnership in a prudent and businesslike
manner and shall devote sufficient time and effort to the Partnership affairs.




(b) In carrying out its obligations, the General Partner shall: Partnership;




(i) Render annual reports to all Partners with respect to the operations of the Partnership;



(ii) On or before March 31st of every year, mail to all persons who were Partners at any time
during the Partnership’s prior fiscal year an annual report of the Partnership, including all
necessary tax information, and any other information regarding the Partnership and its operations
during the prior fiscal year deemed by the General Partner to be material;



(iii) Maintain complete and accurate records of all business conducted by the Partnership and
complete and accurate books of account (containing such information as shall be necessary to record
allocations and distributions), and make such records and books of account available for inspection
and audit by any Partner or such Partner’s duly authorized representative (at the sole expense of
such Partner) during regular business hours and at the principal office of the Partnership; and



(iv) Cause to be filed such certificates and do such other acts as may be required by law to
qualify and maintain the Partnership as a limited partnership under the laws of the State of
Delaware.



(c) The General Partner shall take such actions as it deems necessary to maintain the economic
equivalency of Common Partnership Units and REIT Common Shares and Preferred Partnership Units and
REIT Preferred Shares, respectively, required by this Agreement.




Section 6.4 LIABILITIES OF GENERAL PARTNER; INDEMNIFICATION.



(a) The General Partner shall not be liable for the return of all or any part of the Capital
Contributions of the Limited Partners. Any returns shall be made solely from the assets of the
Partnership according to the terms of this Agreement.



(b) Notwithstanding anything to the contrary set forth in this Agreement, none of the General
Partner or the Company nor any of their officers, directors, agents or employees shall be liable or
accountable in damages or otherwise to the Partnership, any Partners or any assignees, or any of
their successors or assigns, for any losses sustained, liabilities incurred or benefits not derived
as a result of errors in judgment or mistakes of fact or law or any act or omission if the General
Partner acted in good faith. The General Partner shall not be responsible for any misconduct or
negligence on the part on any agent appointed by it in good faith pursuant to Section 6.2 hereof.
The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the
Partnership, the General Partner, the General Partner’s shareholders and the Company’s shareholders
collectively, and that the General Partner is under no obligation to consider the separate
interests of the Limited Partners (including, without limitation, the tax
consequences to Limited Partners or their assignees) in deciding whether to cause the
Partnership to take (or decline to take) any actions.
In the event of a conflict between the
interests of the shareholders of the General Partner or shareholders of the Company on one hand and
the Limited Partners on the other, the General Partner shall endeavor in good faith to resolve the
conflict in a manner not adverse to either the shareholders of the Company or the Limited Partners;
PROVIDED, HOWEVER, that for so long as the Company owns a controlling interest, directly or
indirectly, in the Partnership, any such conflict that cannot be resolved in a manner not adverse
to either the shareholders of the Company or the Limited Partners shall be resolved in favor of the
shareholders of the Company. The General Partner shall not be liable for monetary damages for
losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection
with such decisions, provided that the General Partner has acted in good faith.




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(c) The Partnership shall indemnify an Indemnitee to the fullest extent permitted by law and
save and hold it harmless from and against, and in respect of, any and all losses, claims, damages,
liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to the operations of the
Partnership as set forth in this Agreement in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise; PROVIDED, HOWEVER, that this indemnification
shall not apply if (A) the act or omission of the Indemnitee was material to the matter giving rise
to the proceeding and either was committed in bad faith or was the result of active and deliberate
dishonesty; (B) the Indemnitee actually received an improper personal benefit in money, property or
services; or (C) in the case of any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. The termination of any proceeding by judgment, order
or settlement does not create a presumption that the Indemnitee did not meet the requisite standard
of conduct set forth in this Section 6.4(c). The termination of any proceeding by conviction or
upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that
specified in this Section 6.4(c). Any indemnification pursuant to this Section 6.4 shall be made
only out of the assets of the Partnership, and any insurance proceeds from the liability policy
covering the General Partner and any Indemnitee.



(d) The Partnership may reimburse an Indemnitee for reasonable expenses incurred by an
Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding
upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s
good faith belief that the standard of conduct necessary for indemnification by the Partnership as
authorized in this Section 6.4 has been met, and (ii) a written undertaking by or on behalf of the
Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct
has not been met.



(e) The indemnification provided by this Section 6.4 shall be in addition to any other rights
to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any
vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who
has ceased to serve in such capacity.


 


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(f) The Partnership may purchase and maintain insurance on behalf of the Indemnitees, and such
other Persons as the General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with the Partnership’s
activities, regardless of whether the Partnership would have the power to indemnify such Person
against such liability under the provisions of this Agreement.



(g) For purposes of this Section 6.4, the Partnership shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by the
Indemnitee of its duties to the Partnership also imposes duties on, or otherwise involves services
by, the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed
on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall
constitute fines within the meaning of this Section 6.4; and actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose
reasonably believed by the Indemnitee to be in the interest of the participants and beneficiaries
of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the
Partnership.



(h) In no event may an Indemnitee subject the Limited Partners to personal liability by reason
of the indemnification provisions set forth in this Agreement.



(i) An Indemnitee shall not be denied indemnification in whole or in part under this Section
6.4 because the Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.



(j) Any amendment, modification or repeal of this Section 6.4 or any provision hereof shall be
prospective only and shall not in any way affect the limitations on the General Partner’s liability
to the Partnership and the Limited Partners under this Section 6.4 as in effect immediately prior
to such amendment, modification or repeal with respect to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when claims relating to such matters
may arise or be asserted. The provisions of this Section 6.4 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create
any rights for the benefit of any other Persons.



(k) Notwithstanding any other provisions of this Agreement or the Act, any action of the
General Partner on behalf of the Partnership or any decision of the General Partner to refrain from
acting on behalf of the Partnership, undertaken in the good faith belief that such action or
omission is necessary or advisable in order (i) to protect the ability of the Company to continue
to qualify as a REIT, or (ii) to prevent the Company from incurring any taxes under Section 857 or
Section 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by
all of the Limited Partners. Further, any provision of this Agreement that might jeopardize the
Company’s REIT status shall be (i) void and of no effect, or (ii) reformed, as necessary, to avoid
the Company’s loss of REIT status.


 


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Section 6.5 COMPENSATION OF GENERAL PARTNER; REIMBURSEMENT. The General Partner, as such,
shall not receive any compensation for services rendered to the Partnership. Notwithstanding the
preceding sentence, the General Partner shall be entitled, in
accordance with the provisions of Section 6.7 below, to pay reasonable compensation to its
Affiliates and other entities in which it may be associated for services performed. The General
Partner shall be reimbursed on a monthly basis, or such other basis as the General Partner may
determine in its sole and absolute discretion, for all REIT Expenses.



Section 6.6 RELIANCE ON ACT OF GENERAL PARTNER. No financial institution or any other person,
firm or corporation dealing with the General Partner or the Partnership shall be required to
ascertain whether the General Partner is acting in accordance with this Agreement, but such
financial institution or such other person, firm or corporation shall be protected in relying
solely upon the assurance of and the execution of any instrument or instruments by the General
Partner.




Section 6.7 OUTSIDE SERVICES; DEALINGS WITH AFFILIATES; OUTSIDE ACTIVITIES.



(a) Notwithstanding any provision of this Article VI to the contrary, the General Partner may
employ such agents, accountants, attorneys and others as it shall deem advisable, including its
directors, officers, shareholders, and its Affiliates and entities with which the General Partner,
any Limited Partner or their respective Affiliates may be associated, and may pay them reasonable
compensation from Partnership funds for services performed, which compensation shall be reasonably
believed by the General Partner to be comparable to and competitive with fees charged by unrelated
Persons who render comparable services which could reasonably be made available to the Partnership.
The General Partner shall not be liable for the neglect, omission or wrongdoing of any such Person
so long as it appointed such Person in good faith.



(b) The Partnership may lend or contribute to its Subsidiaries or other Persons in which it
has an equity investment Partnership funds on terms and conditions established in the sole and
absolute discretion of the General Partner. The foregoing authority shall not create any right or
benefit in favor of any Subsidiary or any other Person.



(c) The Partnership may transfer assets to joint ventures, other partnerships, corporations or
other business entities in which it is or thereby becomes a participant upon such terms and subject
to such conditions as are consistent with this Agreement and applicable law.



(d) Except as expressly permitted by this Agreement, neither the General Partner nor any of
its Affiliates nor any Limited Partner shall sell, transfer or convey any property to, or purchase
any property from, the Partnership, directly or indirectly, except pursuant to transactions that
are on terms that are fair and reasonable to the Partnership.



(e) Subject to the Certificate of Incorporation and any agreements entered into by the General
Partner or its Affiliates with the Partnership or a Subsidiary, any officer, director, employee,
agent, trustee, Affiliate or shareholder of the General Partner shall be entitled to and may have
business interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities substantially similar or identical to
those of the Partnership. Neither the Partnership nor any of the Limited Partners shall have any
rights by virtue of this Agreement in any business ventures of such person.


 


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(f) In the event the Company exercises its rights under its Articles of Incorporation to
redeem REIT Common Shares, then the General Partner shall cause the Partnership to purchase from
the Company a number of Common Partnership Units determined based on the application of the
Conversion Factor on the same terms as those on which the Company redeemed such REIT Common Shares.



Section 6.8 ADDITIONAL LOANS TO THE PARTNERSHIP. If additional funds are required by the
Partnership for any purpose relating to the business of the Partnership or for any of its
obligations, expenses, costs, or expenditures, including operating deficits, the Partnership may
borrow such funds as are needed from time to time from any Person (including, without limitation,
the General Partner or any Affiliate of the General Partner; PROVIDED, HOWEVER, that the terms of
any loan from the General Partner or any Affiliate of the General Partner shall be substantially
equivalent to the terms that could be obtained from a third party on an arm’s-length basis) on such
terms as the General Partner and such other Person may agree.



Section 6.9 CONTRIBUTION OF ASSETS. The Company, directly or through one or more of its
Affiliates, shall contribute to the capital of the Partnership from time to time each asset it owns
from time to time during the existence of the Partnership, but it is not required to so contribute:



(a) its interests in the General Partner, Education Realty OP Limited Partner Trust or
Education Realty Limited Partner, LLC;



(b) its direct or indirect interest in any entity in a chain of entities of which the Company
is the sole beneficial owner, so long as all of the assets or other ownership interests in the
entity in that chain furthest removed from the General Partner are contributed directly or
indirectly to the Partnership; or



(c) any equity interest in any entity of which the Company is the sole beneficial owner that
is created or used solely by the General Partner in connection with any borrowing transaction in
whole or in part for the benefit of the Partnership.



ARTICLE VII

RIGHTS, PROHIBITIONS AND REPRESENTATIONS

WITH RESPECT TO LIMITED PARTNERS





Section 7.1 RIGHTS OF LIMITED PARTNERS.



(a) The Partnership may engage the Limited Partners or persons or firms associated with them
for specific purposes and may otherwise deal with such Partners on terms and for compensation to be
agreed upon by any such Partner and the Partnership; PROVIDED, HOWEVER, that no Limited Partner
shall be entitled to participate in the management or control of the business of the Partnership.


 


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(b) The Partnership’s books shall be kept at the principal place of business of the
Partnership and at all times, during reasonable business hours and at such Partner’s sole expense,
shall be entitled to inspect and copy any of them and have on demand true and full information of
all things affecting the Partnership and a formal accounting of Partnership affairs whenever
circumstances render it just and reasonable; PROVIDED, HOWEVER, for such period of time as the
General Partner determines in its sole and absolute discretion to be reasonable, the General
Partner may keep confidential from the Limited Partners any information that (i) the General
Partner believes to be in the nature of trade secrets or other information the disclosure of which
the General Partner in good faith believes is not in the best interests of the Partnership or (ii)
the Partnership or the General Partner is required by law or by agreements with unaffiliated third
parties to keep confidential.



(c) No Limited Partner shall be liable for any debts, liabilities, contracts or obligations of
the Partnership. A Limited Partner shall be liable to the Partnership only to make payments of its
Capital Contribution, if any, as and when due hereunder. After its Capital Contribution is fully
paid, no Limited Partner shall, except as otherwise required by the Act, be required to make any
further Capital Contributions or other payments or lend any funds to the Partnership.



Section 7.2 PROHIBITIONS WITH RESPECT TO THE LIMITED PARTNERS. No Limited Partner shall have
the right:



(a) To take part in the control or management of the Partnership business, to transact
business for or on behalf of the Partnership or to sign for or to bind the Partnership, such powers
being vested solely in the General Partner as set forth herein;



(b) To have such Partner’s Capital Contributions repaid except to the extent provided in this
Agreement;



(c) To require partition of Partnership property or to compel any sale or appraisement of
Partnership assets or sale of a deceased Partner’s interests therein, notwithstanding any
provisions of law to the contrary; or



(d) To sell or assign all or any portion of such Partner’s Limited Partnership Interest in the
Partnership or to constitute the vendee or assignee thereunder a Substitute Limited Partner, except
as provided in Article IX hereof.



Section 7.3 OWNERSHIP BY LIMITED PARTNER OF CORPORATE GENERAL PARTNER OR AFFILIATE. No
Limited Partner shall at any time, either directly or indirectly, own any shares or other interest
in the General Partner or in any Affiliate thereof if such ownership by itself or in conjunction
with other shares or other interests owned by other Limited Partners would, in the opinion of
counsel for the Partnership, jeopardize the classification of the Partnership as a partnership or
the Company as a REIT for federal income tax purposes. The General Partner shall be entitled to
make such reasonable inquiry of the Limited Partners as is required to establish compliance by the
Limited Partners with the provisions of this Section 7.3 and the Limited Partners shall promptly
and fully respond to such inquiries.


 


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Section 7.4 REDEMPTION RIGHT.



(a) Subject to Section 7.4(b) and Section 7.4(c), and the provisions of any agreements between
the Partnership and one or more Limited Partners, each Limited Partner shall have the
right (the “Redemption Right”) to require the Partnership to redeem on a Specified Redemption
Date all or a portion of the Common Partnership Units held by such Limited Partner at a redemption
price equal to and in the form of the Cash Amount to be paid by the Partnership. The Partnership
shall have up to one (1) year (the “Payout Period”) following exercise of a Redemption Right to pay
the Cash Amount to the Limited Partner who is exercising the redemption right (the “Redeeming
Partner”). From and after the Specified Redemption Date, the Cash Amount (or portion thereof) due
and payable to a Redeeming Partner with respect to such Redeeming Partner’s exercise of its
Redemption Right shall bear interest at the rate equal to the lower of (i) the Company’s annual
dividend rate on REIT Common Shares for the prior twelve (12) month period, or (ii) eight percent
(8%) per annum, until the Cash Amount (or portion thereof) shall be paid in full by the
Partnership. The Redemption Right shall be exercised pursuant to a Notice of Redemption delivered
to the Partnership (with a copy to the General Partner) by the Redeeming Partner. A Limited Partner
may not exercise the Redemption Right for less than one thousand (1,000) Common Partnership Units
or, if such Limited Partner holds less than one thousand (1,000) Common Partnership Units, less
than all of the Common Partnership Units held by such Partner. Moreover, a Limited Partner may not
exercise the Redemption Right more than once per calendar quarter, PROVIDED, HOWEVER, that the
General Partner may amend this Section 7.4(a) to limit the number of exercises of the Redemption
Right by the Limited Partners to not less than once per calendar year. Neither the Redeeming
Partner nor any permitted or purported assignee of any Limited Partner shall have any right with
respect to any Common Partnership Units so redeemed to receive any distributions paid after the
Specified Redemption Date. Neither the Redeeming Partner nor any permitted or purported assignee of
any Limited Partner shall have any right, with respect to any Common Partnership Units so redeemed,
to receive any distributions paid after the Specified Redemption Date. Each Redeeming Partner
agrees to provide such representations and related indemnities regarding good and unencumbered
title, and to execute such documents, as the General Partner may reasonably require in connection
with any redemption.



(b) Notwithstanding the provisions of Section 7.4(a), in the event a Limited Partner elects to
exercise the Redemption Right, the General Partner at the direction of the Company, directly or
indirectly through one or more Affiliates, may, in its sole and absolute discretion, elect to
assume directly and satisfy a Redemption Right by paying to the Redeeming Partner either (i) the
Cash Amount, as provided for in Section 7.4(a), or (ii) the REIT Common Shares Amount, as elected
by the General Partner, as directed by the Company (in its sole and absolute discretion), on the
Specified Redemption Date, provided that the Company may defer payment of the Cash Amount until the
end of the Payout Period described in Section 7.4(a) (in which case the Cash Amount shall bear
interest as described in Section 7.4(a)), and provided, further, that the Company may, if it has
elected so to defer payment of the Cash Amount, further elect at any time before the end of the
Payout Period to pay all or any portion of the unpaid Cash Amount with REIT Common Shares having a
Value equal to such portion of the Cash Amount plus any accrued but unpaid interest thereon. On any
such election, the Company, directly or indirectly through one or more Affiliates, shall acquire
the Common Partnership Units offered for redemption by the Redeeming Partner and shall be treated
for all purposes of this Agreement as the owner of such Common Partnership Units. Unless the
General Partner, as directed by the Company (in its sole and absolute discretion), shall exercise
its right to assume directly and satisfy the Redemption Right, neither the General Partner nor the
Company itself shall have any obligation to the Redeeming Partner or to the Partnership with
respect to the Redeeming Partner’s exercise of the Redemption Right.
In the event the General Partner, as directed by
the Company shall exercise its right to satisfy the Redemption Right in the manner described in the
first sentence of this Section 7.4(b), the Partnership shall have no obligation to pay any amount
to the Redeeming Partner with respect to such Redeeming Partner’s exercise of the Redemption Right,
and each of the Redeeming Partner, the Partnership, and the Company shall treat the transaction
between the Company and the Redeeming Partner for federal income tax purposes as a sale of the
Redeeming Partner’s Common Partnership Units to the Company or its Affiliates. Each Redeeming
Partner agrees to provide such representations and related indemnities regarding good and
unencumbered title, and to execute such documents, as the Company may reasonably require in
connection with the issuance of REIT Common Shares upon exercise of the Redemption Right. If the
Redemption Right is satisfied by the delivery of REIT Common Shares, the Redeeming Partner shall be
deemed to become a holder of REIT Common Shares as of the close of business on the Specified
Redemption Date or on such later date permitted by this Section 7.4(b) that the Company delivers
REIT Common Shares in satisfaction of a deferred payment of the Cash Amount, as the case may be.




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Notwithstanding anything to the contrary in Section 7.4(a) or this Section 7.4(b), and in addition
to the right of the Company to deliver REIT Common Shares in satisfaction of a deferred payment of
the Cash Amount, as provided above, should the General Partner, as directed by the Company elect to
satisfy a Redemption Right by paying the Redeeming Partner the REIT Common Shares Amount, and it is
necessary to obtain Company shareholder approval in order for it to issue sufficient REIT Common
Shares to satisfy such Redemption Right in full, then the Company shall have one hundred twenty
(120) days beyond the Specified Redemption Date in which to obtain such shareholder approval and to
pay the REIT Common Shares Amount, and the redemption date shall be required to occur by the
earliest of: (i) ten (10) days after shareholder approval of the issuance of the REIT Common Shares
has been obtained, if it is obtained; (ii) the date on which the General Partner, as directed by
the Company elects to pay such Redeeming Partner the Cash Amount; or (iii) one hundred and thirty
(130) days after the Specified Redemption Date. If such shareholder approval is not obtained, the
Partnership shall pay to the Redeeming Partner the Cash Amount no later than the end of what the
Payout Period would have been had the General Partner, as directed by the Company not elected to
pay the REIT Common Share Amount upon the redemption, together with interest on such Cash Amount as
specified in Section 7.4(a) hereof



(c) Notwithstanding the provisions of Section 7.4(a) and Section 7.4(b), a Limited Partner
shall not be entitled to receive REIT Common Shares if the delivery of REIT Common Shares to such
Partner on the Specified Redemption Date (or such later date permitted by Section 7.4(b), as
applicable) by the Company pursuant to Section 7.4(b) would be prohibited under the Articles of
Incorporation of the Company, as amended or restated from time to time. Without limiting the effect
of the preceding sentence, no Person shall be permitted to receive REIT Common Shares if as a
result of, and after giving effect to, such exercise any Person would Beneficially Own (as defined
in the Articles of Incorporation of the Company, as amended or restated from time to time) more
than 9.8% of the total number of issued and outstanding REIT Common Shares, unless waived by the
board of directors of the Company in its sole discretion. To the extent any attempted redemption
for REIT Common Shares would be a violation of this Section 7.4(c), it shall be null and void ab
initio. The Cash Amount shall be paid in such instances, in accordance with the terms set forth in
Section 7.4(a) or 7.4(b).


 


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



(e) REIT Common Shares issued pursuant to Section 7.4(b) may contain such legends regarding
restrictions on transfer as the Company in good faith determines to be necessary or advisable in
order to (1) comply with restrictions on transfer under the Securities Act and applicable state
securities laws and (2) protect the ability of the Company to continue to qualify as a REIT.



Section 7.5 WARRANTIES AND REPRESENTATIONS OF THE LIMITED PARTNERS. Each Limited Partner
contributing Initial Contributed Assets hereby warrants and represents to and for the benefit of
the General Partner and the Partnership that, as of the date hereof, such Limited Partner owns
good, valid and marketable title to the interests in the Initial Contributed Assets being
contributed to the capital of the Partnership by such Limited Partner (the “Ownership Interests”)
and that except as provided on Exhibit A, such Ownership Interests are free and clear of
all mortgages, pledges, liens, security interests, encumbrances and restrictions of any nature
whatsoever. Each Limited Partner further warrants and represents to and for the benefit of the
General Partner and the Partnership that such Limited Partner has all necessary power and authority
to transfer the Ownership Interests to the Partnership without the consent or authorization of, or
notice to, any third party, except those third parties from whom such consents or authorizations
were obtained.



Section 7.6 INDEMNIFICATION BY LIMITED PARTNERS. Each Limited Partner contributing Initial
Contributed Assets hereby agrees to indemnify the General Partner and the Partnership and hold the
General Partner, its officers and directors and the Partnership and its partners and each of their
respective representatives, successors and assigns harmless from and against any and all claims,
demands, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) arising
out of or in connection with (i) the inaccuracy of the warranties and representations made by such
Limited Partner under Section 7.5 above, or (ii) the ownership of the Ownership Interests by such
Limited Partner and any activities, obligations or liabilities of, or related to, the Initial
Contributed Assets to which such Ownership Interest relates for all periods prior to the date of
this Agreement.



Section 7.7 NOTICE OF SALE OR REFINANCING. The General Partner shall notify the Limited
Partners no less than thirty (30) days prior to any sale, refinancing, reduction (other than
scheduled periodic amortization of principal) of debt or other event that will reduce the amount of
any nonrecourse liabilities of the Partnership that a Limited Partner may include in the tax basis
of his or its Partnership Interests.


 


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Section 7.8 BASIS ANALYSIS AND LIMITED PARTNER GUARANTEES.



(a) Upon the request of any Limited Partner but subject to the General Partner’s agreement,
which may be withheld in the General Partner’s sole discretion, the General Partner may, prior to
the end of each calendar year, beginning in 2005, cause accountants to prepare and provide to the
Limited Partners a study analyzing each refinancing, reduction (other than scheduled periodic
amortization of principal) of debt or other event that occurred during that year that reduced the
amount of any nonrecourse liabilities of the Partnership that a Limited Partner may include in the
tax basis of its Partnership Interests.



(b) Upon the request of the General Partner, or upon a Limited Partner’s own election but
subject to the General Partner’s agreement, which may be withheld in the General Partner’s sole
discretion, a Limited Partner (the “Initiating Limited Partner”) from time to time, may, but shall
not be required to, guarantee or otherwise provide credit support for Partnership indebtedness as
such Limited Partner may elect; PROVIDED, HOWEVER, that the Limited Partner shall be entitled to
take such action only if the General Partner determines that any such action would not have a
material adverse effect on the tax position of the General Partner. All Partners are entitled to
notice of any such guarantee or credit support, and shall have the right to provide guarantees or
credit support on the same terms and conditions as the Initiating Limited Partner does, and all
Limited Partners interested in providing such guarantee or credit support shall cooperate with the
General Partner and each other in considering any guarantee or credit support proposal, and the
General Partner will cooperate in permitting or obtaining any consents for such guarantees or
credit support.



ARTICLE VIII

DISTRIBUTIONS AND PAYMENTS TO PARTNERS





Section 8.1 DISTRIBUTIONS OF CASH FLOW.



(a) The General Partner shall cause the Partnership to distribute on a quarterly basis such
portion of the Cash Flow of the Partnership as the General Partner shall determine in its sole
discretion. Such distributions shall be made to the Partners who are Partners on the Partnership
Record Date established by the General Partner in accordance with their respective Common
Percentage Interests.



(b) In no event may a Partner receive a distribution of Cash Flow with respect to a
Partnership Unit if such Partner is entitled to receive a dividend out of the Company’s share of
such Cash Flow with respect to a REIT Share for which all or part of such Partnership Unit has been
exchanged.



Section 8.2 REIT DISTRIBUTION REQUIREMENTS. Unless the General Partner determines that such a
distribution would not be in the best interests of the Partnership, the General Partner shall cause
the Partnership to distribute sufficient amounts to enable the Company (i) to meet its distribution
requirement for qualification as a REIT as set forth in Section 857(a)(1) of the Code, and (ii) to
avoid the excise tax imposed by Section 4981 of the Code.


 


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Section 8.3 NO RIGHT TO DISTRIBUTIONS IN KIND. No Partner shall be entitled to demand
property other than cash in connection with any distribution by the Partnership.



Section 8.4 DISTRIBUTIONS OF DISPOSITION PROCEEDS. Disposition Proceeds shall be distributed
to the Partners who have positive Capital Account balances in accordance with such Partners’
respective positive Capital Account balances. The Capital Account balances of all of the Partners
shall be adjusted immediately after any Capital Transaction and prior to any distribution pursuant
to this Section 8.4 to reflect the allocation of all profits and losses of the Partnership through
the date of the event of the transaction that produces such Disposition Proceeds.



Section 8.5 WITHDRAWALS. No Partner shall be entitled to make withdrawals from its Capital
Account, or withdraw as a Limited Partner, except as expressly provided herein.



Section 8.6 AMENDMENT. In the event the Partnership issues additional Partnership Units
pursuant to the provisions of this Agreement, the General Partner is hereby authorized to make such
revisions to this Article VIII as it determines are necessary or desirable to reflect the issuance
of such additional Partnership units, including without limitation, making preferential
distributions to certain classes of Partnership Units.



ARTICLE IX

TRANSFERS OF INTERESTS





Section 9.1 GENERAL PARTNER.



(a) Other than to an Affiliate of the General Partner, the General Partner may not transfer
any of its General Partnership Interest or Limited Partnership Interests or withdraw as General
Partner except as provided in Section 9.1(b) or in connection with a transaction described in
Section 9.1(c).



(b) Except as otherwise provided in Section 6.7 or Section 9.1(c), the General Partner, the
Company or their Subsidiaries shall not engage in any merger, consolidation or other combination
with or into another Person or in any sale of all or substantially all of its assets, or any
reclassification, or recapitalization or change of outstanding REIT Common Shares (other than a
change in par value, or from par value to no par value, or as a result of a subdivision or
combination as described in the definition of “Conversion Factor”) (each of the foregoing being
herein referred to as a “Transaction”), unless the Transaction also includes a merger of the
Partnership or sale of substantially all of the assets of the Partnership or other transaction as a
result of which all Limited Partners will receive for each Common Partnership Unit an amount of
cash, securities or other property equal to the product of the Conversion Factor and the greatest
amount of cash, securities or other property paid to a holder of one REIT Common Share in
consideration of one REIT Common Share as a result of the Transaction; PROVIDED, HOWEVER, that if,
in connection with the Transaction, a purchase, tender or exchange offer shall have been made to
and accepted by the holders of more than fifty percent (50%) of the outstanding REIT Common Shares,
the holders of Common Partnership Units shall receive the greatest amount of cash, securities or
other property which a Limited Partner would have
received had it exercised the Redemption Right and the General Partner at the direction of the
Company had exercised its election to satisfy the Redemption Right by the issuance of REIT Common
Shares immediately prior to the expiration of such purchase, tender or exchange offer, PROVIDED
FURTHER, HOWEVER, that Education Realty Limited Partner, LLC will only be entitled to receive an
amount of cash, securities or other property equal to the product of the number of REIT Common
Shares that would constitute the REIT Common Shares Amount if Education Realty Limited Partner, LLC
had offered all of its Common Partnership Units for redemption and the Specified Redemption Date
were the date of the closing of the Transaction multiplied by the greatest amount of cash,
securities or other property paid in consideration for one REIT Common Share in connection with the
Transaction or in connection with a purchase, tender or exchange offer that is accepted by the
holders of more than fifty percent (50%) of the outstanding REIT Common Shares, as applicable.


 


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(c) Notwithstanding Section 9.1(b), the General Partner, the Company or their Subsidiaries may
merge into or consolidate with another entity if immediately after such merger or consolidation (i)
substantially all of the assets of the successor or surviving entity (the “Surviving Partner”),
other than Partnership Units held by the General Partner, Education Realty OP Limited Partners
Trust, Education Realty OP Limited Partner Trust, the Company or their Subsidiaries, are
contributed to the Partnership as a Capital Contribution in exchange for Partnership Units with a
fair market value equal to the value of the assets so contributed as determined by the Surviving
Partner in good faith and (ii) the Surviving Partner or one of its Subsidiaries expressly agrees to
assume all obligations of the General Partner hereunder. Upon such contribution and assumption, the
Surviving Partner shall have the right and duty to amend this Agreement as set forth in this
Section 9.1(c). The Surviving Partner shall in good faith arrive at a new method for the
calculation of the Cash Amount and Conversion Factor for a Common Partnership Unit after any such
merger or consolidation so as to approximate the existing method for such calculation as closely as
reasonably possible. Such calculation shall take into account, among other things, the kind and
amount of securities, cash and other property that was receivable upon such merger or consolidation
by a holder of REIT Shares or options, warrants or other rights relating thereto, and which a
holder of Common Partnership Units could have acquired had such Common Partnership Units been
redeemed immediately prior to such merger or consolidation. Such amendment to this Agreement shall
provide for adjustment to such method of calculation, which shall be as nearly equivalent as may be
practicable to the adjustments provided for with respect to the Conversion Factor. The above
provisions of this Section 9.1(c) shall similarly apply to successive mergers or consolidations
permitted hereunder.



Section 9.2 ADMISSION OF A SUBSTITUTE OR ADDITIONAL GENERAL PARTNER. A Person shall be
admitted as a Substitute or Additional General Partner of the Partnership only if the transaction
giving rise to such substitution or admission is otherwise permitted under this Agreement and the
following terms and conditions are satisfied:



(a) the Person to be admitted as a Substitute or Additional General Partner shall have
accepted and agreed to be bound by all the terms and provisions of this Agreement by executing a
counterpart thereof and such other documents or instruments as may be required or appropriate in
order to effect the admission of such Person as a General Partner, and a certificate evidencing the
admission of such Person as a General Partner shall have been filed for recordation and all other
actions required by the Act in connection with such admission shall have been performed;


 


29









 





(b) if the Person to be admitted as a Substitute or Additional General Partner is a
corporation or a partnership, it shall have provided the Partnership with evidence satisfactory to
counsel for the Partnership of such Person’s authority to become a General Partner and to be bound
by the terms and provisions of this Agreement; and



(c) counsel for the Partnership shall have rendered an opinion (relying on such opinions from
counsel of any state or any other jurisdiction as may be necessary) that the admission of the
Person to be admitted as a Substitute or Additional General Partner is in conformity with the Act
and that none of the actions taken in connection with the admission of such Person as a Substitute
or Additional General Partner will cause the termination of the Partnership under Section 708 of
the Code, or will cause it to be classified as other than a partnership for federal income tax
purposes, or will result in the loss of any Limited Partner’s limited liability status.




Section 9.3 EFFECT OF BANKRUPTCY, WITHDRAWAL, DEATH OR DISSOLUTION OF A GENERAL PARTNER.



(a) Upon the occurrence of an Event of Bankruptcy as to a General Partner (and its automatic
removal pursuant to Section 9.4(a) hereof) or the withdrawal or dissolution of a General Partner
(except that, if a General Partner is on the date of such occurrence a partnership, the withdrawal,
death, dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be
deemed not to be a dissolution of such General Partner if the business of such General Partner is
continued within ninety (90) days by the remaining general partners or all remaining members of
such partnership), the Partnership shall be dissolved and terminated unless the Partnership is
continued pursuant to Section 9.3(b).



(b) Following the occurrence of an Event of Bankruptcy as to a General Partner or the
withdrawal or dissolution of a General Partner (except that, if a General Partner is on the date of
such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to or
removal of a partner in such partnership shall be deemed not be a dissolution of such General
Partner if the business of such General Partner is continued within ninety (90) days by all
remaining general partners or all remaining members of such partnership), persons holding at least
a majority of the Limited Partnership Interests, within ninety (90) days after such occurrence, may
elect to continue the business of the Partnership for the balance of the term specified in Section
3.2 by selecting, subject to Section 9.2 and any other applicable provisions of this Agreement, a
Substitute General Partner by majority vote of the Limited Partnership Interests. If the Limited
Partners elect to reconstitute the Partnership and admit a Substitute General Partner, the
relationship between the Partners and any Person who has acquired an interest of a Partner in the
Partnership shall be governed by this Agreement.




Section 9.4 REMOVAL OF A GENERAL PARTNER.



(a) Upon the occurrence of an Event of Bankruptcy as to, or the dissolution of, a General
Partner, such General Partner shall be deemed to be removed automatically; PROVIDED, HOWEVER, that
if a General Partner is on the date of such occurrence a partnership, the withdrawal, death,
dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed
not to be a dissolution of the General Partner if the business
of such General Partner is continued within ninety (90) days by the remaining general partners
or all remaining members of such partnership.


 


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(b) If a General Partner has been removed pursuant to this Section 9.4(a) and the Partnership
is not continued pursuant to Section 9.3(b), the partnership shall be dissolved.




(c) A General Partner may not be removed by the Limited Partners with or without cause.




Section 9.5 RESTRICTIONS ON TRANSFER OF LIMITED PARTNERSHIP INTERESTS.



(a) Except as otherwise provided in this Article IX, no Limited Partner may offer, sell,
assign, hypothecate, pledge or otherwise transfer its Limited Partnership Interest, in whole or in
part, whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a
“Transfer”), without the written consent of the General Partner, which consent may be withheld in
the sole and absolute discretion of the General Partner; PROVIDED, HOWEVER, the consent required by
this Section 9.5(a) shall not be required in the event of a Transfer on or after the first
anniversary of the date of this Agreement by a Limited Partner that was a limited partnership as of
the date of this Agreement to any of its partners. The General Partner may require, as a condition
of any Transfer, that the transferor assume all costs incurred by the Partnership in connection
therewith.



(b) No Limited Partner may effect a Transfer of its Limited Partnership Interest if, (i) in
the opinion of legal counsel for the Partnership, such proposed Transfer would require the
registration of the Limited Partnership Interest under the Securities Act of 1933, as amended, or
would otherwise violate any applicable federal or state securities or “Blue Sky” law (including
investment suitability standards) or (ii) the assignee is not an Accredited Investor within the
meaning of Rule 501 of the Securities Act of 1933, as amended.



(c) No Transfer by a Limited Partner of its Partnership Units may be made to any Person if (i)
in the opinion of legal counsel for the Partnership, the Transfer would result in the Partnership’s
being treated as an association taxable as a corporation (other than a qualified REIT subsidiary
within the meaning of Section 856(i) of the Code), (ii) such transfer is effectuated through an
“established securities market” or a “secondary market” (or the substantial equivalent thereof)
within the meaning of Section 7704 of the Code, (iii) the Transfer would create a risk that the
Company would not be taxed as a REIT for federal income tax purposes or (iv) assuming the
Partnership Units subject to the Transfer were redeemed for REIT Shares, the redemption would
create a risk that the Company would not be taxed as a REIT for federal income tax purposes.



(d) Section 9.5(a) shall not prevent any donative Transfer by an individual Limited Partner to
his immediate family members or any trust in which the individual or his immediate family members
own, collectively, one hundred percent (100%) of the beneficial interests, provided that the
transferor assumes all costs of the Partnership in connection therewith and any such transferee
shall not have the rights of a Substitute Limited Partner (unless and until
admitted as a Substitute Limited Partner pursuant to this Section 9.5 and Section 9.6 of this
Agreement).


 


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(e) No Transfer of a Limited Partnership Interest may be made to a lender of the Partnership
or any Person who is related (within the meaning of Section 1.752-4(b) of the Treasury Regulations)
to any lender to the Partnership whose loan constitutes a “nonrecourse liability” (as defined in
Section 1.704-2(b)(3) of the Treasury Regulations), without the consent of the General Partner, in
its sole and absolute discretion, provided that as a condition to such consent the lender will be
required to enter into an arrangement with the Partnership and the General Partner to exchange or
redeem for the Cash Amount any Partnership Units in which a security interest is held
simultaneously with the time at which such lender would be deemed to be a partner in the
Partnership for purposes of allocating liabilities to such lender under Section 752 of the Code.



(f) Any Transfer in contravention of any of the provisions of this Article IX shall be void
and ineffectual and shall not be binding upon, or recognized by, the Partnership.




Section 9.6 ADMISSION OF SUBSTITUTE LIMITED PARTNER.



(a) Subject to the other provisions of this Article IX (including, without limitation, the
provisions of Section 9.5(a) regarding consent of the General Partner), an assignee of the Limited
Partnership Interest of a Limited Partner (including, without limitation, any purchaser,
transferee, donee, or other recipient of any disposition of such Limited Partnership Interest)
shall be deemed admitted as a Limited Partner of the Partnership only upon the satisfactory
completion of the following:



(i) the assignee has obtained the prior written consent of the General Partner as to its
admission as a Substitute Limited Partner, which consent may be given or denied in the exercise of
the General Partner’s sole and absolute discretion; PROVIDED, HOWEVER, that this Section 9.6(a)(i)
shall not apply in the case of assignee resulting from a Transfer by a Limited Partner that was a
partner as of the date of this Agreement to any of its partners;



(ii) the assignee shall have accepted and agreed to be bound by the terms and provisions of
this Agreement by executing a counterpart or an amendment thereof, including a revised Exhibit
A, and such other documents or instruments as the General Partner may require in order to
effect the admission of such Person as a Limited Partner;



(iii) to the extent required, an amended certificate of limited partnership evidencing the
admission of such Person as a Limited Partner shall have been signed, acknowledged and filed for
record in accordance with the Act;



(iv) the assignee shall have delivered a letter containing the representation and warranty set
forth in Section 9.11 and the agreement set forth in Section 9.11;



(v) if the assignee is a corporation, partnership or trust, the assignee shall have provided
the General Partner with evidence satisfactory to counsel for the Partnership of the assignee’s
authority to become a Limited Partner under the terms and provisions of this Agreement;


 


32









 





(vi) the assignee shall have executed a power of attorney containing the terms and provisions
set forth in Article XII; and



(vii) the assignee shall have paid all reasonable legal fees of the Partnership and the
General Partner and all filing and publication costs incurred in connection with its substitution
as a Limited Partner.



(b) For the purpose of allocating profits and losses and distributing cash received by the
Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the
records of the Partnership as, a Partner upon the filing of the certificate described in Section
9.6(a)(iii) or, if no such filing is required, the later of the date specified in the transfer
documents, or the date on which the General Partner has received all necessary instruments of
transfer and substitution.



(c) The General Partner shall as promptly as practicable take all action required to
effectuate the admission of the Person seeking to become a Substitute Limited Partner, including
preparing the documentation required by this Section and making all official filings and
publications.




Section 9.7 RIGHTS OF ASSIGNEES OF PARTNERSHIP INTERESTS.



(a) Subject to the provisions of Sections 9.5 and 9.6 hereof, except as required by operation
of law, the Partnership shall not be obligated for any purposes whatsoever to recognize the
assignment by any Limited Partner of his Partnership Interest until the Partnership has received
notice thereof. If the General Partner, in its sole and absolute discretion, does not consent
(subject to the proviso in Section 9.6(a)(i)) to the admission of any transferee of any Partnership
Interest as a Substitute Limited Partner in connection with a Transfer permitted by Section 9.5,
such transferee shall be considered an assignee for the purposes of this Agreement. An assignee
shall be entitled to all the rights of an assignee of a limited partnership interest under the Act,
including the right to receive distributions attributable to the Partnership Units assigned, but
such assignee shall not be entitled to effect a consent or effect a Redemption Right or vote with
respect to such Partnership Units on any matter presented to the Limited Partners for approval
(such right to consent or vote or effect a Redemption Right, to the extent provided in this
Agreement or under the Act, fully remaining with the transferor Limited Partner).



(b) Any Person who is the assignee of all or any portion of a Limited Partner’s Limited
Partnership Interest, but does not become a Substitute Limited Partner and desires to make a
further assignment of such Limited Partnership Interest, shall be subject to all of the provisions
of this Article IX to the same extent and in the same manner as any Limited Partner desiring to
make an assignment of its Limited Partnership Interest.


 


33









 





Section 9.8 EFFECT OF BANKRUPTCY, DEATH, INCOMPETENCE OR TERMINATION OF A LIMITED PARTNER.
The occurrence of an Event of Bankruptcy as to a Limited Partner, the death of a Limited Partner or
a final adjudication that a Limited Partner is incompetent (which term shall include, but not be
limited to, insanity) shall not cause the termination or dissolution of the Partnership, and the
business of the Partnership shall continue. If an order for relief in a bankruptcy proceeding is
entered against an individual Limited Partner,
the trustee or receiver of his estate or, if he dies, his executor, administrator or trustee,
or, if he is finally adjudicated incompetent, his committee, guardian or conservator, shall have
the rights of such Limited Partner for the purpose of settling or managing his estate property and
such power as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or any
part of his Partnership Interest and to join with the assignee in satisfying conditions precedent
to the admission of the assignee as a Substitute Limited Partner.



Section 9.9 TRANSFEREES. Any Partnership Interests owned by the Partners and transferred
pursuant to this Article IX shall be and remain subject to all of the provisions of this Agreement.



Section 9.10 ABSOLUTE RESTRICTION. Notwithstanding any provision of this Agreement to the
contrary, the sale or exchange of any interest in the Partnership will not be permitted if the
interest sought to be sold or exchanged, when added to the total of all other interests sold or
exchanged within the period of twelve (12) consecutive months ending with the proposed date of the
sale or exchange, would result in the termination of the Partnership under Section 708 of the Code,
if such termination would materially and adversely affect the Partnership or any Partner.



Section 9.11 INVESTMENT REPRESENTATION. Each Limited Partner hereby represents and warrants
to the General Partner and to the Partnership that the acquisition of his Partnership Interest is
made as a principal for his account for investment purposes only and not with a view to the resale
or distribution of such Partnership Interest. Each Limited Partner agrees that he will not sell,
assign or otherwise transfer his Partnership Interest or any fraction thereof, whether voluntarily
or by operation of law or at judicial sale or otherwise, to any Person who does not similarly
represent and warrant and similarly agree not to sell, assign or transfer such Partnership Interest
or fraction thereof to any Person who does not similarly represent, warrant and agree.



ARTICLE X

TERMINATION OF THE PARTNERSHIP




Section 10.1 TERMINATION. The Partnership shall be dissolved upon (i) an Event of Bankruptcy
as to the General Partner or the dissolution or withdrawal of the General Partner (unless within
ninety (90) days thereafter Limited Partners holding more than fifty percent (50%) of the Limited
Partnership Interests in the Partnership elect to continue the Partnership and to elect one or more
persons to serve as the General Partner or General Partners of the Partnership), (ii) ninety (90)
days following the sale of all or substantially all of the Partnership’s assets (provided that if
the Partnership receives an installment obligation as consideration for such sale or other
disposition, the Partnership shall continue, unless sooner dissolved under the provisions of this
Agreement, until such time as such obligation is paid in full), (iii) the expiration of the term
specified in Section 3.2, (iv) the redemption of all Limited Partnership Interests (other than any
of such interests held by the General Partner, Education Realty OP Limited Partner Trust or
Education Realty Limited Partner, LLC), or (v) the election by the General Partner (but only in
accordance with and as permitted by applicable law) that the Partnership should be dissolved. Upon
dissolution of the Partnership (unless the business of the Partnership is continued as set forth
above), the General Partner (or its trustee, receiver, successor or legal representative) shall
proceed with the winding up of the Partnership, and its assets shall be applied and
distributed as herein provided.


 


34









 





Section 10.2 PAYMENT OF DEBTS. The assets shall first be applied to the payment of the
liabilities of the Partnership (other than any loans or advances that may have been made by
Partners to the Partnership) and the expenses of liquidation. A reasonable time shall be allowed
for the orderly liquidation of the assets of the Partnership and the discharge of liabilities to
creditors so as to enable the General Partner to minimize any losses resulting from liquidation.



Section 10.3 DEBTS TO PARTNERS. The remaining assets shall next be applied after payments of
the Partnership’s debts and liabilities referred to in Section 10.2 to the repayment of any loans
made by any Partner to the Partnership.



Section 10.4 REMAINING DISTRIBUTION. The remaining assets after payment of all Partnership
debts and liabilities referred to in Sections 10.2 and 10.3 shall then be distributed to the
Partners in accordance with their positive Capital Account balances, determined after taking into
account all Capital Account adjustments for all prior periods and the Partnership taxable year
during which the liquidation occurs.



Section 10.5 RESERVE. Notwithstanding the provisions of Sections 10.3 and 10.4, the General
Partner may retain such amount as it deems necessary as a reserve for any contingent liabilities or
obligations of the Partnership, which reserve, after the passage of a reasonable period of time,
shall be distributed pursuant to the provisions of this Article X.



Section 10.6 FINAL ACCOUNTING. Each of the Partners shall be furnished with a statement
examined by the Partnership’s independent accountants, which shall set forth the assets and
liabilities of the Partnership as of the date of the complete liquidation. Upon the compliance by
the General Partner with the foregoing distribution plan, the Limited Partners shall cease to be
such, and the General Partner, as the sole remaining Partner of the Partnership, shall execute and
cause to be filed a Certificate of Cancellation of the Partnership and any and all other documents
necessary with respect to termination and cancellation of the Partnership.



ARTICLE XI

AMENDMENTS





Section 11.1 AUTHORITY TO AMEND.



(a) In addition to any other provisions of this Agreement that expressly empower and enable
the General Partner to amend this Agreement without the approval of any other Partner, this
Agreement may be amended by the General Partner without the approval of any other Partner if such
amendment (i) is solely for the purpose of clarification or is of an inconsequential nature and
does not change the substance hereof and the Partnership has obtained an opinion of counsel to that
effect, (ii) is to add to the obligations of the General Partner or causes the General Partner to
surrender any right or power granted to the General Partner or any Affiliate of the General Partner
for the benefit of the Limited Partners, (iii) is to reflect the admission, substitution,
termination or withdrawal of Partners in accordance with this Agreement or to amend the calculation
of the Cash Amount and the Conversion Factor pursuant to a transaction
described in Section 9.1(c), (iv) is to set forth the designations, right, powers, duties and
preferences of the holders of any additional Partnership Interests issued pursuant to Section 4.3,
(v) is to satisfy any requirements, conditions or guidelines contained in any order, directive,
opinion ruling or regulation of a federal or state agency or contained in federal or state law, or
(vi) is, in the opinion of counsel for the Partnership, necessary or appropriate to satisfy
requirements of the Code with respect to partnerships or REITs or of any federal or state
securities laws or regulations. Any amendment made pursuant to this Section 11.1(c) may be made
effective as of the date of this Agreement.


 


35









 





(b) Notwithstanding any contrary provision of this Agreement, any amendment to this Agreement
or other act which would (i) adversely affect the limited liability of the Limited Partners, (ii)
impose on the Limited Partners any obligation to make additional Capital Contributions to the
Partnership, (iii) change the method of allocation of profit and loss as provided in Article V or
the distribution provisions of Articles VIII and X hereof (except as permitted in Sections 4.3, 5.1
and 8.6 hereof), (iv) seek to impose personal liability on the Limited Partners, or (v) affect the
operation of the Conversion Factor of the Redemption Right (other than pursuant to Sections 7.4(a)
or 11.1(a)(iii)) shall require the consent and approval of Partners holding more than fifty percent
(50%) of the Common Percentage Interests.



(c) Except as otherwise specifically provided in this Section 11.1, amendments to this
Agreement shall require the approval of Partners holding more than fifty percent (50%) of the
Common Percentage Interests. Any amendment to this Agreement requiring the approval of Partners
holding fifty percent (50%) of the Common Percentage Interests may be proposed by the General
Partner or by any Limited Partners holding twenty-five percent (25%) or more of the Common
Percentage Interests, and any such amendment proposed by Limited Partners holding twenty-five
percent (25%) or more of the Common Percentage Interests shall be promptly submitted by the General
Partner to the Partners for a vote.



Section 11.2 NOTICE OF AMENDMENTS. A copy of any amendment to be approved by the Partners
pursuant to Sections 11.1(b) or 11.1(c) shall be mailed in advance to such Partners. Partners shall
be notified as to the substance of any amendment pursuant to Sections 11.1(a), 11.1(b) or 11.1(c),
and upon request shall be furnished a copy thereof.



ARTICLE XII

POWER OF ATTORNEY




Section 12.1 POWER. Each of the Limited Partners irrevocably constitutes and appoints the
General Partner as such Limited Partner’s true and lawful attorney in such Limited Partner’s name,
place and stead to make, execute, swear to, acknowledge, deliver and file:



(a) Any certificates or other instruments which may be required to be filed by the Partnership
under the laws of the State of Delaware or of any other state or jurisdiction in which the General
Partner shall deem it advisable to file;



(b) Any documents, certificates or other instruments, including, but not limited to, (i) any
and all amendments and modifications of this Agreement or of the instruments described in Section
12.1(a) which may be required or deemed desirable by the General Partner to effectuate
the provisions of any part of this Agreement, (ii) all instruments relating to the admission,
withdrawal, removal or substitution of any Partner, and (iii) by way of extension and not
limitation, to do all such other things as shall be necessary to continue and to carry on the
business of the Partnership; and


 


36









 





(c) All documents, certificates or other instruments that may be required to effectuate the
dissolution and termination of the Partnership, to the extent such dissolution and termination is
authorized hereby. The power of attorney granted hereby shall not constitute a waiver of, or be
used to avoid, the rights of the Partners to approve certain amendments to this Agreement pursuant
to Sections 11.1(b) and 11.1(c) or be used in any other manner inconsistent with the status of the
Partnership as a limited partnership or inconsistent with the provisions of this Agreement. Each
such Limited Partner hereby agrees to be bound by any representation made by the General Partner,
acting in good faith pursuant to such power of attorney; and each such Limited Partner hereby
waives any and all defenses which may be available to contest, negate or disaffirm the action of
the General Partner taken in good faith under such power of attorney.



Section 12.2 SURVIVAL OF POWER. It is expressly intended by each of the Partners that the
foregoing power of attorney is coupled with an interest, is irrevocable and shall survive the
death, incompetence, dissolution, liquidation or adjudication of insanity or bankruptcy or
insolvency of each such Partner. The foregoing power of attorney shall survive the delivery of an
assignment by any of the Partners of such Partner’s entire interest in the Partnership, except that
where an assignee of such entire interest has become a substitute Limited Partner, then the
foregoing power of attorney of the assignor Partner shall survive the delivery of such assignment
for the sole purpose of enabling the General Partner to execute, acknowledge and file any and all
instruments necessary to effectuate such substitution.



ARTICLE XIII

CONSENTS, APPROVALS, VOTING AND MEETINGS




Section 13.1 METHOD OF GIVING CONSENT OR APPROVAL. Any consent or approval required by this
Agreement may be given as follows:



(a) by a written consent given by the consenting Partner and received by the General Partner
at or prior to the doing of the act or thing for which the consent is solicited, provided that such
consent shall not have been nullified by:



(i) Notice to the General Partner of such nullification by the consenting Partner prior to the
doing of any act or thing, the doing of which is not subject to approval at a meeting called
pursuant to Section 13.2, or



(ii) Notice to the General Partner of such nullification by the consenting Partner prior to
the time of any meeting called pursuant to Section 13.2 to consider the doing of such act or thing,
or



(iii) The negative vote by such consenting Partner at any meeting called pursuant to Section
13.2 to consider the doing of such act or thing.


 


37









 





(b) by the affirmative vote by the consenting Partner for the doing of the act or thing for
which the consent is solicited at any meeting called pursuant to Section 13.2 to consider the doing
of such act or thing; or



(c) by the failure of the Partner to respond or object to a request from the General Partner
for such Partner’s consent within thirty (30) days from its receipt of such request (or such
shorter period of time as the General Partner may indicate in such request in order to ensure that
the General Partner has sufficient time to respond, if required, to any third party with respect to
the subject matter of such request).



Section 13.2 MEETINGS OF LIMITED PARTNERS. Any matter requiring the consent or vote of all or
any of the Partners may be considered at a meeting of the Partners held not less than five (5) nor
more than sixty (60) days after notice thereof shall have been given by the General Partner to all
Partners. Such notice (i) may be given by the General Partner, in its discretion, at any time, or
(ii) shall be given by the General Partner within fifteen (15) days after receipt from Limited
Partners holding more than fifty percent (50%) of the Common Percentage Interests of a request for
such meeting.



Section 13.3 OPINION. Except for consents obtained pursuant to Sections 13.1 or 13.2, no
Limited Partner shall exercise any consent or voting rights unless either (a) at the time of the
giving of consent or casting of any vote by the Partners hereunder, counsel for the Partnership or
counsel employed by the Limited Partners shall have delivered to the Partnership an opinion
satisfactory to the Partners to the effect that such conduct (i) is permitted by the Act, (ii) will
not impair the limited liability of the Limited Partners, and (iii) will not adversely affect the
classification of the Partnership as a partnership for federal income tax purposes, or (b)
irrespective of the delivery or nondelivery of such opinion of counsel, Limited Partners holding
more than seventy-five percent (75%) of the Common Percentage Interests of the Limited Partners
determine to exercise their consent or voting rights.



Section 13.4 SUBMISSIONS TO PARTNERS. The General Partner shall give the Partners notice of
any proposal or other matter required by any provision of this Agreement, or by law, to be
submitted for consideration and approval of the Partners. Such notice shall include any information
required by the relevant provision or by law.



ARTICLE XIV

MISCELLANEOUS




Section 14.1 GOVERNING LAW. The Partnership and this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.



Section 14.2 AGREEMENT FOR FURTHER EXECUTION. At any time or times upon the request of the
General Partner, the Limited Partners hereby agree to sign, swear to, acknowledge and deliver all
further documents and certificates required by the laws of Delaware, or any other jurisdiction in
which the Partnership does, or proposes to do, business, or which may be reasonable, necessary,
appropriate or desirable to carry out the provisions of this Agreement or the Act. This Section
14.2 shall not prejudice or affect the rights of the Limited
Partners to approve certain amendments to this Agreement pursuant to Sections 11.1(b) and
11.1(c).


 


38









 





Section 14.3 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto contain the
entire understanding among the parties and supersede any prior understandings or agreements among
them respecting the within subject matter. There are no representations, agreements, arrangements
or understandings, oral or written, between or among the parties hereto relating to the subject
matter of this Agreement which are not fully expressed herein.



Section 14.4 SEVERABILITY. This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules and regulations of the
jurisdictions in which the Partnership does business. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to any extent, be
invalid or unenforceable, the remainder of this Agreement and the application of such provision to
other persons or circumstances shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.



Section 14.5 NOTICES. Notices to Partners or to the Partnership shall be deemed to have been
given when personally delivered, mailed by prepaid registered or certified mail, or sent for next
day delivery via a nationally recognized overnight courier or delivery service, addressed as set
forth in Exhibit A attached hereto, unless a notice of change of address has previously
been given in writing by the addressee to the addressor, in which case such notice shall be
addressed to the address set forth in such notice of change of address.



Section 14.6 TITLES AND CAPTIONS. All titles and captions are for convenience only, do not
form a substantive part of this Agreement, and shall not restrict or enlarge any substantive
provisions of this Agreement.



Section 14.7 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each one
of which shall constitute an original executed copy of this Agreement.



Section 14.8 PRONOUNS. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the person or persons may
require.



 


39









 





Section 14.9 SURVIVAL OF RIGHTS. Subject to the provisions hereof limiting transfers, this
Agreement shall be binding upon and inure to the benefit of the Partners and the Partnership and
their respective legal representatives, successors, transferees and assigns.



Section 14.10 WAIVER. No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute waiver of any such breach or any covenant, duty,
agreement or condition.



Section 14.11 CREDITORS. Other than as expressly set forth herein with respect to the
Indemnitees, none of the provisions of this Agreement shall be for the benefit of, or shall be
enforceable by, any creditor of the Partnership.



Section 14.12 UNIT CERTIFICATES. If the General Partner so elects, Units shall be evidenced
by numbered certificates in such form as shall be approved by the General Partner, signed by the
General Partner. Any such Unit certificates shall be kept in a book and shall be issued in
consecutive order therefrom. The name of the person owning the Units, the number of Units, and the
date of issue shall be entered on the stub of each certificate. Unit certificates exchanged or
returned shall be canceled by the General Partner and returned to their original place in the Unit
book.



(SIGNATURES ON FOLLOWING PAGE)



 



40









 







IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and year first
above written.



	 	 	 	 	 
	 	GENERAL PARTNER


EDUCATION REALTY OP GP, INC., a Delaware
 corporation

 	 
	 	By:  	/s/ Paul O. Bower
 	 
	 	 	Paul O. Bower, President 	 
	 	 	 	 
	 	LIMITED PARTNERS



EDUCATION REALTY LIMITED PARTNER, LLC,
 a Delaware limited liability
company

 	 
	 	By:  	/s/ Paul O. Bower
 	 
	 	 	Paul O. Bower, President 	 
	 	 	 	 
	 	EDUCATION REALTY OP LIMITED PARTNER

TRUST, a Maryland business trust

 	 
	 	By:  	/s/ Paul O. Bower
 	 
	 	 	Paul O. Bower, President 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	ALLEN & O’HARA, INC.

 	 
	 	By:  	/s/ Paul O. Bower
 	 
	 	 	Paul O. Bower, President and CEO 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	JPI MULTIFAMILY INVESTMENTS L.P.,

a Delaware limited partnership

 	 
	 	By:  	New GP LLC, 
a Delaware limited liability company, 
its General Partner
 	 
	 	 	 	 
	 	By:  	/s/ James W. Morgan, Jr.
 	 
	 	 	Name:  	James W. Morgan, Jr. 	 
	 	 	Title:  	Assistant Vice President 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	 	 
	 	/s/ Paul O. Bower
 	 
	 	Paul O. Bower 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	 	 
	 	/s/ Thomas J. Hickey
 	 
	 	Thomas J. Hickey 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	 	 
	 	/s/ Craig L. Cardwell
 	 
	 	Craig L. Cardwell 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	 	 
	 	/s/ Wallace L. Wilcox
 	 
	 	Wallace L. Wilcox 	 



Signature Page to ERT Operating Partnership LPA






 









 







	 	 	 	 	 
	 	 	 
	 	/s/ Randall H. Brown
 	 
	 	Randall H. Brown 	 



Signature Page to ERT Operating Partnership LPA






 









 








The undersigned has executed this Agreement not as a Partner of the Partnership but to agree to the
provisions of this Agreement imposing obligations on and granting rights to the Company.



	 	 	 	 	 
	 	EDUCATION REALTY TRUST, INC

 	 
	 	By:  	/s/ Paul O. Bower
 	 
	 	 	Paul O. Bower, President and CEO 	 



Signature Page to ERT Operating Partnership LPA







 









 







EXHIBIT A




LIST
OF PARTNERS AND CONTRIBUTED
ASSETS AS OF JANUARY 31, 2005




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Agreed Value of	 	 	Common	 	 	Common	 
	 	 	Initial Contributed	 	Contributed	 	 	Partnership	 	 	Percentage	 
	 	 	Asset	 	Asset	 	 	Units	 	 	Interest	 
	Partners:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	General Partner:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Education Realty OP GP, Inc.
	 	Cash in the amount of $332,160	 	$	332,160	 	 	 	20,760	 	 	 	.1	%
	 
	Limited Partners:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Education Realty Limited Partner Trust
	 	Cash in the Amount of $306,451,840	 	$	306,451,840	 	 	 	19,153,240	 	 	 	92.26	%
	 
	Education Realty Limited Partner, LLC
	 	Cash in the Amount of $100	 	$	100	 	 	 	220,000	 	 	 	1.1	%
	 
	 	Membership Interests in C Station,  L.L.C.**	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.**	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Allen & O’Hara, Inc.
	 	Interest in Gables property*	 	$	10,374,352	 	 	 	648,397	 	 	 	3.1	%
	 
	 	Membership Interest in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Paul O. Bower
	 	Membership Interest in C Station, L.L.C.	 	$	2,256	 	 	 	141	 	 	 	.01	%
	 
	 	Membership Interests in C Station, L.L.C.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.*	 	 	 	 	 	 	 	 	 	 	 	 







 


A-1









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Agreed Value of	 	 	Common	 	 	Common	 
	 	 	Initial Contributed	 	Contributed	 	 	Partnership	 	 	Percentage	 
	 	 	Asset	 	Asset	 	 	Units	 	 	Interest	 
	Thomas J. Hickey
	 	Interest in Gables property*	 	$	692,560	 	 	 	43,285	 	 	 	.2	%
	 
	 	Membership Interests in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Membership Interest in C Station, L.L.C.**	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Craig L. Cardwell
	 	Interest in Gables property*	 	$	706,688	 	 	 	44,168	 	 	 	.21	%
	 
	 	Membership Interest in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Membership Interests in C Station, L.L.C.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Randall H. Brown
	 	Interest in Gables property*	 	$	692,560	 	 	 	43,285	 	 	 	.2	%
	 
	 	Membership Interest in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Membership Interests in C Station, L.L.C.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.*	 	 	 	 	 	 	 	 	 	 	 	 







 


A-2









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Agreed Value of	 	 	Common	 	 	Common	 
	 	 	Initial Contributed	 	Contributed	 	 	Partnership	 	 	Percentage	 
	 	 	Asset	 	Asset	 	 	Units	 	 	Interest	 
	Wallace L. Wilcox
	 	Interest in Gables property*	 	$	692,560	 	 	 	43,285	 	 	 	.2	%
	 
	 	Membership Interest in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Membership Interests in C Station, L.L.C.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Shares of Allen & O’Hara Education Services, Inc.*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	William W. Harris
	 	Interest in Gables property*	 	$	692,560	 	 	 	43,285	 	 	 	.2	%
	 
	 	Membership Interest in Education Properties Trust, LLC*	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	An undivided interest in the projects known as Jefferson Commons — Columbia, L.P. and Jefferson Commons — Phase II Limited	 	 	 	 	 	 	 	 	 	 	 	 
	 
	JPI Multifamily Investments L.P.
	 	Partnership pursuant to that certain Contract of Sale/Contribution dated September 21, 2004	 	$	7,995,008	 	 	 	499,688	 	 	 	2.4	%









	 	 	 
	*	 	Such Limited Partner held an indirect interest in such contributed property and received Common
Partnership Units by virtue of one or a series of distributions by the direct owners (and any other
indirect owners) of such contributed property.

	 
	**	 	Such Limited Partner held a direct interest in a portion of such contributed property as well as
an indirect interest in a portion of such contributed property. Such Limited Partner received the
Common Partnership Units attributable to its indirect interest in such contributed property by
virtue of one or a series of distributions by the direct owners (and any other indirect owners) of
such contributed property.




 


A-3









 









EXHIBIT B




FEDERAL INCOME TAX MATTERS




For purposes of interpreting and implementing Article V of the Partnership Agreement, the following
rules shall apply and shall be treated as part of the terms of the Partnership Agreement:



A. SPECIAL ALLOCATION PROVISIONS.




1. For purposes of determining the amount of gain or loss to be allocated pursuant to Article
V of the Partnership Agreement, any basis adjustments permitted pursuant to Section 743 of the Code
shall be disregarded.



2. When Partnership Interests are transferred during any taxable year, the General Partner
intends to allocate Partnership income, loss, deductions and credits using the closing of the books
method.



3. Notwithstanding any other provision of the Partnership Agreement, to the extent required by
law, income, gain, loss and deduction attributable to property contributed to the Partnership by a
Partner shall be shared among the Partners so as to take into account any variation between the
basis of the property and the fair market value of the property at the time of contribution in
accordance with the requirements of Section 704(c) of the Code and the applicable regulations
thereunder as more fully described in Part B hereof. Treasury Regulations under Section 704(c) of
the Code allow partnerships to use any reasonable method for accounting for Book-Tax Differences
for contributions of property so that a contributing partner receives the tax benefits and burdens
of any built-in gain or loss associated with contributed property. The Operating Partnership shall
account for Book-Tax Differences using a method determined by the General Partner in its sole and
absolute discretion. An allocation of remaining built-in gain under Section 704(c) will be made
when Section 704(c) property is sold.



4. Notwithstanding any other provision of the Partnership Agreement, in the event the
Partnership is entitled to a deduction for interest imputed under any provision of the Code on any
loan or advance from a Partner (whether such interest is currently deducted, capitalized or
amortized), such deduction shall be allocated solely to such Partner.



5. Notwithstanding any provision of the Partnership Agreement to the contrary, to the extent
any payments in the nature of fees made to a Partner or reimbursements of expenses to any Partner
are finally determined by the IRS to be distributions to a Partner for federal income tax purposes,
there will be a gross income allocation to such Partner in the amount of such distribution.


 


B-1









 





6. (a) Notwithstanding any provision of the Partnership Agreement to the contrary and subject
to the exceptions set forth in Section 1.704-2(f)(2)-(5) of the Treasury Regulations, if there is a
net decrease in Partnership Minimum Gain during any Partnership fiscal year, each Partner shall be
specially allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to such Partner’s share of the net decrease in Partnership
Minimum Gain determined in accordance with Section 1.704-2(g)(2) of the Treasury
Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Partner pursuant thereto. The items to be so
allocated shall be determined in accordance with Section 1.704-2(f) of the Treasury Regulations.
This paragraph 6(a) is intended to comply with the minimum gain chargeback requirement in such
Section of the Treasury Regulations and shall be interpreted consistently therewith. To the extent
permitted by such Section of the Treasury Regulations and for purposes of this paragraph 6(a) only,
each Partner’s Adjusted Capital Account Balance shall be determined prior to any other allocations
pursuant to Article V of the Partnership Agreement with respect to such fiscal year and without
regard to any net decrease in Partner Minimum Gain during such fiscal year.



(b) Notwithstanding any provision of the Partnership Agreement to the contrary, except
paragraph 6(a) of this Exhibit and subject to the exceptions set forth in Section 1.704-2(i)(4) of
the Treasury Regulations, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain
during any Partnership fiscal year, each Partner who has a share of the Partner Nonrecourse Debt
Minimum Gain, determined in accordance with Section 1.704-2(i)(3) of the Treasury Regulations,
shall be specially allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to such Partner’s share of the net decrease in Partner
Nonrecourse Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(5) of the Treasury
Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Partner pursuant thereto. The items to be so
allocated shall be determined in accordance with Section 1.704-2(i)(4) of the Treasury Regulations.
This paragraph 6(b) is intended to comply with the minimum gain chargeback requirement in such
Section of the Treasury Regulations and shall be interpreted consistently therewith. Solely for
purposes of this paragraph 6(b), each Partner’s Adjusted Capital Account Balance shall be
determined prior to any other allocations pursuant to Article V of the Partnership Agreement with
respect to such fiscal year, other than allocations pursuant to paragraph 6(a) hereof.



7. Notwithstanding any provision of the Partnership Agreement to the contrary, in the event
any Partners unexpectedly receive any adjustments, allocations or distributions described in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially allocated to such
Partners in an amount and manner sufficient to eliminate the deficits in their Adjusted Capital
Account Balances created by such adjustments, allocations or distributions as quickly as possible.



8. No loss shall be allocated to any Partner to the extent that such allocation would result
in a deficit in its Adjusted Capital Account Balance while any other Partner continues to have a
positive Adjusted Capital Account Balance; in such event, losses shall first be allocated to any
Partners with positive Adjusted Capital Account Balances, and in proportion to such balances, to
the extent necessary to reduce their positive Adjusted Capital Account Balances to zero. Any excess
shall be allocated to the General Partner.



9. Any special allocations of items pursuant to this Part A shall be taken into account in
computing subsequent allocations so that the net amount of any items so allocated and the profits,
losses and all other items allocated to each such Partner pursuant to Article V of the Partnership
Agreement shall, to the extent possible, be equal to the net amount that would have
been allocated to each such Partner pursuant to the provisions of Article V of the Partnership
Agreement if such special allocations had not occurred.


 


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10. Notwithstanding any provision of the Partnership Agreement to the contrary, Nonrecourse
Deductions for any fiscal year or other period shall be specially allocated to the Partners in the
manner and in accordance with the percentages set forth in Section 5.1 of the Partnership
Agreement.



11. Notwithstanding any provision of the Partnership Agreement to the contrary, any Partner
Nonrecourse Deduction for any fiscal year or other period shall be specially allocated to the
Partner who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which
such Partner Nonrecourse Deductions are attributable in accordance with Section 1.7042(i) of the
Treasury Regulations.



B. CAPITAL ACCOUNT ADJUSTMENTS AND 704(c) TAX ALLOCATIONS.




1. For purposes of computing the amount of any item of income, gain, deduction or loss to be
reflected in the Partners’ Capital Accounts, the determination, recognition and classification of
any such item shall be the same as its determination, recognition and classification for federal
income tax purposes; PROVIDED, HOWEVER, that:



(a) Any income, gain or loss attributable to the taxable disposition of any property shall be
determined by the Partnership as if the adjusted basis of such property as of such date of
disposition was equal in amount to (i) the Agreed Value in the case of the Initial Contributed
Assets or other contributed properties, or (ii) the Carrying Value with respect to property
subsequently purchased.



(b) The computation of all items of income, gain, loss and deduction shall be made by the
Partnership and, as to those items described in Section 705(a)(1)(B) or Section 705(a)(2)(B) of the
Code, without regard to the fact that such items are not includable in gross income or are neither
currently deductible nor capitalizable for federal income tax purposes.



2. A transferee of a Partnership Interest will succeed to the Capital Account relating to the
Partnership Interest transferred.



3. Upon an issuance of additional Partnership Interests, the Capital Accounts of all Partners
(and the Agreed Values of all Partnership properties) shall, immediately prior to such issuance, be
adjusted (consistent with the provisions hereof) upward or downward to reflect any unrealized gain
or unrealized loss attributable to each Partnership property (as if such unrealized gain or
unrealized loss had been recognized upon an actual sale of such property at the fair market value
thereof, immediately prior to such issuance, and had been allocated to the Partners, at such time,
pursuant to Article V of the Partnership Agreement). In determining such unrealized gain or
unrealized loss attributable to the properties, the fair market value of Partnership properties
shall be determined by the General Partner using such reasonable methods of valuation as it may
adopt.


 


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4. Immediately prior to the distribution of any Partnership property in liquidation of the
Partnership, the Capital Accounts of all Partners shall be adjusted (consistent with the
provisions hereof and Section 704 of the Code) upward or downward to reflect any unrealized
gain or unrealized loss attributable to the Partnership property (as if such unrealized gain or
unrealized loss had been recognized upon an actual sale of each such property, immediately prior to
such distribution, and had been allocated to the Partners, at such time, pursuant to Article V of
the Partnership Agreement). In determining such unrealized gain or unrealized loss attributable to
property, the fair market value of Partnership property shall be determined by the General Partner
using such reasonable methods of valuation as it may adopt.



5. In accordance with Section 704(c) of the Code and the regulations thereunder, income, gain,
loss and deduction with respect to any property shall, solely for tax purposes, and not for Capital
Account purposes, be allocated among the Partners so as to take account of any variation between
the adjusted basis of such property to the Partnership for federal income tax purposes.



6. In the event the Agreed Value of any Partnership asset is adjusted as described in
paragraph 3 above, subsequent allocations of income, gain, loss and deduction with respect to such
asset shall take account of any variation between the adjusted basis of such asset for federal
income tax purposes and its Agreed Value in the same manner as under Section 704(c) of the Code and
the regulations thereunder.



7. Any elections or other decisions relating to such allocations shall be made by the General
Partner in any manner that reasonably reflects the purpose and intention of this Agreement.



C. DEFINITIONS.




1. For the purposes of this Exhibit, the following terms shall have the meanings indicated
unless the context clearly indicates otherwise:



“ADJUSTED CAPITAL ACCOUNT BALANCE”: means the balance in the Capital Account of a Partner as
of the end of the relevant fiscal year of the Partnership, after giving effect to the following:
(i) credit to such Capital Account any amounts the Partner is obligated to restore, pursuant to the
terms of this Agreement or otherwise, or is deemed obligated to restore pursuant to the penultimate
sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, and (ii) debit
to such capital account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the
Treasury Regulations.



“AGREED VALUE”: means the net fair market value of Contributed Property as agreed to by the
Contributing Partner and the Partnership (or other property subsequently adjusted to reflect
contributions), using such reasonable method of valuation as they may adopt and as adjusted from
time to time pursuant to Paragraph B.3 of this Exhibit.



“BOOK TAX DIFFERENCE”: means, with respect to any item of Contributed Property, as of the date
of any determination, the difference between the Carrying Value of such Contributed Property and
the adjusted basis thereof for federal income tax purposes as of such date. A Partner’s share of
the Book-Tax Difference in all of its Contributed Property will be reflected by the difference
between such Partner’s Capital Account balance and the hypothetical
balance of such Partner’s Capital Account computed as if it had been maintained strictly in
accordance with federal income tax accounting principles.


 


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“CARRYING VALUE”: means the adjusted basis of such property for federal income tax purposes as
of the time of determination.



“NONRECOURSE DEDUCTIONS”: shall have the meaning set forth in Section 1.704-2(b)(1) of the
Treasury Regulations. The amount of Nonrecourse Deductions for a Partnership fiscal year equals the
excess, if any, of the net increase, if any, in the amount of Partnership Minimum Gain during that
fiscal year over the aggregate amount of any distributions during that fiscal year of proceeds of a
Nonrecourse Liability, that are allocable to an increase in Partnership Minimum Gain, determined
according to the provisions of Section 1.704-2(c) of the Treasury Regulations.



“NONRECOURSE LIABILITY”: shall have the meaning set forth in Section 1.704-2(b)(3) of the
Treasury Regulations.



“PARTNER NONRECOURSE DEBT MINIMUM GAIN”: means an amount, with respect to each Partner
Nonrecourse Debt, determined in accordance with Section 1.704-2(i) of the Treasury Regulations.



“PARTNER NONRECOURSE DEBT”: shall have the meaning set forth in Section 1.704-2(b)(4) of the
Treasury Regulations.



“PARTNER NONRECOURSE DEDUCTIONS”: shall have the meaning set forth in Section 1.704-2(i)(2) of
the Treasury Regulations. For any Partnership taxable year, the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt equal the net increase during the year, if
any, in the amount of Partner Nonrecourse Debt Minimum Gain reduced (but not below zero) by
proceeds of the liability that are both attributable to the liability and allocable to an increase
in the Partner Nonrecourse Debt Minimum Gain.



“PARTNERSHIP AGREEMENT”: shall mean this Amended and Restated Limited Partnership Agreement of
Education Realty Operating Partnership, LP.



“PARTNERSHIP MINIMUM GAIN”: shall have the meaning set forth in Sections 1.704-2(b)(2) and
1.704-2(d) of the Treasury Regulations.



For purposes of this Exhibit, all other capitalized terms will have the same definition as in
the Partnership Agreement.


 


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EXHIBIT C




NOTICE OF EXERCISE OF REDEMPTION RIGHT




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



	 	 	 
	Dated:
	 	 
	 

	 	 
	 
	 	 
	Name of Limited Partner:
	 	 
	 
	 	 
	 


	 	 
	(Signature of Limited Partner)
	 	 
	 
	 	 
	 


	 	 
	(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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