FIRST AMENDMENT TO THE
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF UNITED DOMINION REALTY, L.P.
This First
Amendment to the Amended and Restated Agreement of Limited
Partnership of United Dominion Realty, L.P., dated as of
June 24, 2005 (this “Amendment”), is being
executed by United Dominion Realty Trust, Inc., a Maryland
corporation (the “Company”), as the general partner of
United Dominion Realty, L.P., a Delaware limited partnership (the
“Partnership”), pursuant to the authority conferred
upon the Company by Section 11.01 of the Amended and Restated
Agreement of Limited Partnership of United Dominion Realty, L.P.,
dated as of February 23, 2004, as amended and/or supplemented
from time to time (the “Agreement”). Capitalized terms
used, but not otherwise defined herein, shall have the respective
meanings ascribed thereto in the Agreement.
WHEREAS, pursuant
to Section 4.02(a) of the Agreement, the Company is authorized
to determine the designations, preferences and relative,
participating, optional or other special rights, powers and duties
of Partnership Units.
NOW, THEREFORE, in
consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(1) The
Agreement is hereby amended by the addition of a new exhibit,
titled “Exhibit E,” in the form attached hereto,
which shall be attached and made a part of the
Agreement.
(2) Except as
specifically amended hereby, the terms, covenants, provisions and
conditions of the Agreement shall remain unmodified and continue in
full force and effect and, except as amended hereby, all of the
terms, covenants, provisions and conditions of the Agreement are
hereby ratified and confirmed in all respects.
IN WITNESS
WHEREOF, this Amendment has been executed as of the date first
written above.
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UNITED DOMINION
REALTY TRUST, INC.
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By:
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/s/ Mary Ellen
Norwood
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Mary Ellen
Norwood
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Vice
President - Legal Administration
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PARTNERSHIP UNIT DESIGNATION
OF THE
CLASS III OUT-PERFORMANCE PARTNERSHIP SHARES
OF UNITED DOMINION REALTY, L.P.
1. NUMBER OF
UNITS AND DESIGNATION.
A class of
Partnership Units is hereby designated as “Class III
Out-Performance Partnership Shares,” and the number of
Partnership Units initially constituting such class shall be seven
hundred fifty thousand (750,000).
For purposes of
this Partnership Unit Designation, the following terms shall have
the meanings indicated in this Section 2. Capitalized terms
used and not otherwise defined herein shall have the meanings
assigned thereto in the Agreement.
“Change of
Control” shall mean the occurrence of any of the following
events:
(i) an
acquisition of any voting securities of the Company (the
“Voting Securities”) by any “person” (as
the term “person” is used for purposes of Section 13(d)
or Section 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) immediately after which such
person has “beneficial ownership” (within the meaning
of Rule 13d-3 promulgated under the Exchange Act)
(“Beneficial Ownership,” “Beneficial Owner”
or “Beneficially Owned,” as the specific context
requires) of 30% or more of the combined voting power of the
Company’s then-outstanding Voting Securities; provided,
however, in determining whether a Change in Control has occurred,
Voting Securities that are acquired in a Non-Control Acquisition
(as hereinafter defined) shall not constitute an acquisition that
would cause a Change in Control. “Non-Control
Acquisition” shall mean an acquisition by (A) an
employee benefit plan (or a trust forming a part thereof)
maintained by (1) the Company or (2) any corporation,
partnership or other person of which a majority of its voting power
or its equity securities or equity interest is owned directly or
indirectly by the Company or in which the Company serves as a
general partner or manager (a “Subsidiary”),
(B) the Company or any Subsidiary, or (C) any person in
connection with a Non-Control Transaction (as hereinafter
defined);
(ii) the
individuals who constitute the Board of Directors of the Company as
of June 24, 2005 (the “Incumbent Board”) cease for
any reason to constitute at least two-thirds (2/3) of the members
of the Board of Directors of the Company; provided, however, that
if the election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at
least two-thirds (2/3) of the Incumbent Board, such new director
shall be considered as a member of the Incumbent Board; provided,
further, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a
result of either an actual or
E-1
threatened
“election contest” (as described in Rule 14a-11
promulgated under the Exchange Act) (an “Election
Contest”) or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the
Board of Directors of the Company (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(iii) approval
by stockholders of the Company of: (A) a merger,
consolidation, share exchange or reorganization involving the
Company, unless (1) the stockholders of the Company
immediately before such merger, consolidation, share exchange or
reorganization, own, directly or indirectly immediately following
such merger, consolidation, share exchange or reorganization, at
least 60% of the combined voting power of the outstanding voting
securities of the corporation that is the successor in such merger,
consolidation, share exchange or reorganization (the
“Surviving Company”) in substantially the same
proportion as their ownership of the Voting Securities immediately
before such merger, consolidation, share exchange or
reorganization, (2) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation, share exchange or
reorganization constitute at least two-thirds (2/3) of the members
of the board of directors of the Surviving Company, and (3) no
persons (other than the Company or any Subsidiary of the Company,
any employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Company or any Subsidiary
of the Company), or any person who, immediately prior to such
merger, consolidation, share exchange or reorganization had
Beneficial Ownership of 30% or more of the then-outstanding Voting
Securities has Beneficial Ownership of 30% or more of the combined
voting power of the Surviving Company’s then-outstanding
voting securities (a transaction described in clauses
(1) through (3) is referred to herein as a
“Non-Control Transaction”); (B) a complete
liquidation or dissolution of the Company; or (C) an agreement
for the sale or other disposition of all or substantially all of
the assets of the Company to any person (other than a transfer to a
Subsidiary of the Company).
Notwithstanding
the foregoing, a Change of Control shall not be deemed to occur
solely because any person (a “Subject Person”) acquired
Beneficial Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company that, by reducing the number of
Voting Securities outstanding, increases the proportional number of
shares Beneficially Owned by such Subject Person, provided that if
a Change of Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities by
the Company, and after such share acquisition by the Company, such
Subject Person becomes the Beneficial Owner of any additional
Voting Securities that increases the percentage of the
then-outstanding Voting Securities Beneficially Owned by such
Subject Person, then a Change of Control shall occur.
“Class III
Out-Performance Partnership Share” shall mean a Partnership
Unit with the designations, preferences and relative,
participating, optional or other special rights, powers and duties
as are set forth in this Exhibit E .
E-2
“Class III
Out-Performance Valuation Date” shall mean the earlier
to
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