EXHIBIT 10.1
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
UNITED DOMINION REALTY, L.P.
This SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF UNITED DOMINION REALTY, L.P. (this "Amendment") is made
and entered into as of June 12, 2003 (the "Effective Date") by and among United
Dominion Realty, L.P., a Virginia limited partnership (the "Partnership"),
United Dominion Realty Trust, Inc., a Maryland corporation (the "Company"), as
the general partner of the Partnership, and Windjammer Apartments, L.P.
("WJLP"), M.V. JV, LLC ("MVLLC"), Mesa Verde Villas II, L.P. ("MVLP" and,
together with WJLP and MVLLC, the "Contributors"), and the recipients of the
Class A Partnership Units (as defined below) party to this Amendment (the "Unit
Recipients") and amends that certain Third Amended and Restated Agreement of
Limited Partnership of United Dominion Realty, L.P. dated as of December 7, 1998
as amended by that certain First Amendment to Third Amended and Restated
Agreement of Limited Partnership of United Dominion Realty, L.P. dated as of May
8, 2001 (as amended, the "Partnership Agreement"). The Partnership, the Company,
the Contributors and the Unit Recipients are sometimes referred to in this
Amendment collectively as the "Parties" and individually as a "Party." Unless
indicated otherwise, all section, schedule, appendix and exhibit references
contained in this Amendment are to sections, schedules and exhibits of this
Amendment.
RECITALS
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A. On the Effective Date, the Contributors have made a Capital
Contribution of an aggregate of $28,738,273 to the Partnership in exchange for
which the Contributors are entitled to receive an aggregate of 1,730,179 limited
partnership interests in the Partnership, with the rights and preferences set
forth in this Amendment (the "Class A Partnership Units").
B. On the Effective Date, the Contributors have distributed all or a
portion of the Class A Partnership Units to the Unit Recipients.
C. Pursuant to the authority granted to the General Partner under
the Partnership Agreement, the General Partner desires to amend the Partnership
Agreement to reflect (a) the issuance of the Class A Partnership Units, (b) the
admission of the Contributors and the Unit Recipients, as the case may be, as
Additional Limited Partners and (c) certain other matters described in this
Amendment.
D. The Contributors and the Unit Recipients desire to become parties
to the Partnership Agreement as Limited Partners and to be bound by all terms,
conditions and other provisions of this Amendment and the Partnership Agreement
(as amended by this Amendment).
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms used in this Amendment, unless
otherwise defined in this Amendment, shall have the meanings as set forth in the
Partnership Agreement.
2. Admission of Contributors. The Contributors and the Unit
Recipients are admitted as Additional Limited Partners in accordance with
Section 4.02(a) of the Partnership Agreement holding such number of Class A
Partnership Units as is set forth on Appendix A, attached to this Amendment.
Each Contributor and Unit Recipient agrees to become a party to the Partnership
Agreement as a Limited Partner and to be bound by all the terms, conditions and
other provisions of the Partnership Agreement, as amended by this Amendment. The
admission of the Contributors and the Unit Recipients shall become effective as
of the Effective Date, which shall also be the date on which the names of the
Contributors and the Unit Recipients are recorded on the books and records of
the Partnership.
3. Restatement of Exhibit A. Exhibit A to the Partnership Agreement
is hereby deleted in its entirety and replaced with Appendix A.
4. Definitions. Section 1.01 of the Partnership Agreement is hereby
amended by adding the following defined terms in the correct alphabetical order.
"Class A Partner" means a Limited Partner who holds Class A
Partnership Units.
"Class A Partnership Units" means Partnership Interests
having the rights and preferences of a Class A Partnership Unit as set
forth in this Agreement.
"Class A Specified Redemption Date" means the date that
Class A Partnership Units are required to be redeemed or acquired
pursuant to Section 8.05(d).
"Contribution Agreements" means collectively that certain
Contribution Agreement dated as of May 2, 2003 between the General
Partner, the Partnership, Mesa Verde Villas II, L.P. and M.V. JV, LLC
and that certain Contribution Agreement dated as of May 2, 2003
between the General Partner, the Partnership and Windjammer
Apartments, L.P.
"Cross Over Date" means the date on which a Class A Partner
would have received distributions with respect to the Class A
Partnership Units held by such Class A Partner equal to or greater
than the Threshold Amount for a period of four consecutive calendar
quarters, assuming such Class A Partner had received distributions
based on the Dividend Equivalent instead of distributions on the Class
A Partnership Units pursuant to this Agreement.
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"First Amendment" means the First Amendment to the Third
Amended and Restated Agreement of Limited Partnership of United
Dominion Realty, L.P., dated as of June 1, 2001.
"Preferred Return" means, as to each Class A Partner, a
cumulative annual, non-compounded return on each Class A Partnership
Unit equal to eight percent (8%) based upon a value of $16.61 per
Class A Partnership Unit.
"Threshold Amount" means a fixed distribution of $1.3288 per
annum.
5. Distributions. Section 5.02(a) of the Partnership Agreement is
hereby deleted in its entirety and replaced with the following:
"5.02 Distribution of Cash.
(a) Except as provided in Section 5.06, the General Partner
shall be required to make distributions of Available Cash pursuant to
Sections 5.02(a)(i), 5.02(a)(ii), 5.02(a)(iii) and 5.02(a)(iv) on a
quarterly (or, at the election of the General Partner, more frequent)
basis to the Partners who are Partners on the Partnership Record Date
with respect to such quarter (or other distribution period). The
amount and frequency of the distributions of Available Cash pursuant
to section 5.02(a)(v) shall be determined by the General Partner in
its sole discretion. Available Cash shall be distributed to the
Partners in the following order of priority:
(i) First, to the Class A Partners until the Cross
Over Date, in an amount sufficient to provide each Class A
Partner its Preferred Return from the date of the first issuance
of Class A Partnership Units through the date of the distribution
less any prior distributions to the Class A Partners pursuant to
this Section 5.01(a)(i); provided that if the Partnership does
not have sufficient funds to distribute to provide each Class A
Partner with its Preferred Return, distributions pursuant to this
Section 5.02(a)(i) shall be made pro rata to the Class A Partners
in accordance with the amount otherwise due to each Class A
Partner under this Section 5.02(a)(i);
(ii) Second, to the Outside Partners (which shall
exclude the Class A Partners prior to the Cross Over Date, but
shall include the Class A Partners, other than Class A Partners
that are also UDR Partners, on and after the Cross Over Date) in
proportion to their respective Percentage Interests on the
Partnership Record Date, until each Outside Partner has received
an amount equal to its Dividend Equivalent for such quarter (or
other distribution period);
(iii) Third, to the UDR Partners, other than, prior to
the Cross Over Date, UDR Partners who are also Class A Partners,
in
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proportion to their respective Percentage Interests on the
Partnership Record Date, until each UDR Partner has received an
amount equal to the excess, if any, of (A) the amount that such
UDR Partner would have received pursuant to Sections 5.02(a)(iv)
and 5.02(a)(v) in the absence of Section 5.02(a)(ii) and this
Section 5.02(a)(iii) from the date of this Agreement to the end
of the period to which the distribution relates (assuming that
distributions under Section 5.02(a)(v), like the distributions
under Sections 5.02(a)(i) through 5.02(a)(iv), were required to
be made on a quarterly or more frequent basis), over (B) the sum
of all prior distributions to such UDR Partner pursuant to this
Section 5.02(a)(iii), Section 5.02(a)(iv) and Section 5.02(a)(v);
(iv) Fourth, to the Partners (which shall exclude the
Class A Partners prior to the Cross Over Date, but shall include
the Class A Partners on and after the Cross Over Date) in
accordance with their respective Percentage Interests on the
Partnership Record Date, until each such Outside Partner has
received an amount equal to the excess, if any, of (A) the amount
equal to its Dividend Equivalent from the date of this Agreement
to the end of the period to which the distribution relates, over
(B) the sum of all prior distributions to such Outside Partner
pursuant to Section 5.02(a)(ii) and this Section 5.02(a)(iv); and
(v) Thereafter, to the Partners (which shall exclude
the Class A Partners prior to the Cross Over Date, but shall
include the Class A Partners on and after the Cross Over Date) in
accordance with their respective Percentage Interests on the
Partnership Record Date.
The amount and frequency of distributions of any cash other than
Available Cash shall be determined by the General Partner in its sole
discretion and, if distributed, such cash shall be distributed to the
Partners in accordance with this Section 5.02(a). If a new or existing
Partner acquires an additional Partnership Interest in exchange for a
Capital Contribution on any date other a Partnership Record Date, the
cash distribution attributable to such additional Partnership Interest
for the Partnership Record Date following the issuance of such
additional Partnership Interest shall be reduced in the proportion
that the number of days that such additional Partnership Interest is
held by such Partner bears to the number of days between such
Partnership Record Date and the immediately preceding Partnership
Record Date."
6. Transactions. Section 7.01(c)(iv) of the Partnership Agreement is
hereby deleted in its entirety and replaced with the following:
"(iv) the Company merges, consolidates, or combines with or
into another entity and, immediately after such merger, (A)
substantially all of the assets of the surviving entity, other than
Partnership Units and the ownership interests in any wholly-owned
Subsidiaries held by the Company, are contributed to the Partnership
as a Capital Contribution in exchange for Partnership units with
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a fair market value equal to the value of the assets so contributed as
determined pursuant to Section 704(b) of the Code, (B) any successor
or surviving corporation expressly agrees to assume all obligations of
the Company hereunder, and (C) the Conversion Factor is adjusted
appropriately to reflect the ratio at which REIT Shares are converted
into shares of the surviving entity."
7. Limitation on Liability. Section 8.03 of the Partnership
Agreement is hereby deleted in its entirety and replaced by the following:
"8.03 Limitation on Liability of Limited Partners. 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. Notwithstanding the foregoing provisions of this
Section 8.03, a Class A Partner shall be liable to the Partnership or to
its lenders to the extent set forth in any guarantee of Partnership debt or
in any agreement to contribute capital to the Partnership in connection
with any Partnership debt, in each case only to the extent so agreed by
such Class A Partner in such guarantee or contribution agreement."
8. Redemption.
(a) Sections 8.05(a), 8.05(b), 8.05(c) and 8.05(d) of the
Partnership Agreement are hereby deleted in their entirety and replaced by
the following:
"(a) Subject to Sections 8.05(b), 8.05(c), 8.05(d), and
8.05(e), and the provisions of any agreement between the Partnership
and any Limited Partner with respect to Partnership Units held by such
Limited Partners, such Limited Partner, other than the Original
Limited Partner, shall have the right (the "Redemption Right") to
require the Partnership to redeem on a Specified Redemption Date, or
on the Class A Specified Redemption Date with respect to a Class A
Partner, all or a portion of the 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, provided, that such
Partnership Units shall have been outstanding for at least one year.
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 Limited Partner who is exercising the Redemption Right
(the "Redeeming Partner"); provided, however, that the Partnership
shall not be obligated to satisfy such Redemption Right if the General
Partner elects to purchase the Partnership Units subject to the Notice
of Redemption pursuant to Section 8.05(b); and provided, further, that
no Limited Partner may deliver more than two Notices of Redemption
during each calendar year, provided that each Class A Partner may
deliver a Notice of Redemption more frequently provided it is limited
to one Notice of Redemption per calendar quarter. A Limited Partner
may not exercise the Redemption Right for less than 1,000 Partnership
Units or, if such Limited Partner holds less than 1,000 Partnership
Units, all of the
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Partnership Units held by such Partner. Except as otherwise provided
in Section 8.05(h), the Redeeming Partner shall have no right, with
respect to any Partnership Units so redeemed, to receive any
distribution paid with respect to Partnership Units if the record date
for such distribution is on or after the Specified Redemption Date or
the Class A Specified Redemption Date, as applicable."
"(b) Notwithstanding the provisions of Section 8.05(a), a
Limited Partner that exercises the Redemption Right shall be deemed to
have offered to sell the Partnership Units described in the Notice of
Redemption to the General Partner, and the General Partner may, in its
sole and absolute discretion but subject to the last sentence of this
subsection (b), elect to purchase directly and acquire such
Partnership Units by paying to the Redeeming Partner either the Cash
Amount or the REIT Shares Amount, as elected by the General Partner
(in its sole and absolute discretion), on the Specified Redemption
Date or on the Class A Specified Redemption Date with respect to a
Class A Partner, whereupon the General Partner shall acquire the
Partnership Units offered for redemption by the Redeeming Partner and
shall be treated for all purposes of this Agreement as the owner of
such Partnership Units. If the General Partner shall elect to exercise
its right to purchase Partnership Units under this Section 8.05(b)
with respect to a Notice of Redemption, it shall so notify the
Redeeming Partner within five (three for any Class A Partner) Business
Days after the receipt by the General Partner of such Notice of
Redemption. Such notice shall indicate whether the General Partner
will pay the Cash Amount or the REIT Shares Amount. Unless the General
Partner (in its sole and absolute discretion) shall exercise its right
to purchase Partnership Units from the Redeeming Partner pursuant to
this Section 8.05(b), the General Partner shall not have any
obligation to the Redeeming Partner or the Partnership with respect to
the Redeeming Partner's exercise of the Redemption Right. In the event
the General Partner shall exercise its right to purchase Partnership
Units with respect to the exercise of a Redemption Right in the manner
described in the first sentence of this Section 8.05(b), the
Partnership shall have no obligation to pay any amount to the
Redeeming Partner with respect to such Redeeming Partner's exercise of
such Redemption Right, and each of the Redeeming Partner, the
Partnership, and the General Partner shall treat the transaction
between the General Partner and the Redeeming Partner for federal
income tax purposes as a sale of the Redeeming Partner's Partnership
Units to the General Partner. Each Redeeming Partner agrees to execute
such documents as the Partnership may reasonably require in connection
with the issuance of REIT Shares upon exercise of the Redemption
Right. If Section 5.05 hereof shall prevent the Partnership from
satisfying, in whole or in part, any exercise of the Redemption Right
by a Redeeming Partner, then the Company (whether or not it is then
the General Partner) shall be deemed to have elected pursuant to this
Section 8.05(b) to purchase, and hereby agrees to purchase, directly
from such Redeeming Partner, such number of Partnership Units as the
Partnership is unable to redeem due to the operation of Section 5.05."
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"(c) Notwithstanding the provisions of Section 8.05(a) and
8.05(b), a Limited Partner shall not be entitled to exercise the
Redemption Right if the delivery of REIT Shares to such Partner on the
Specified Redemption Date by the Company pursuant to Section 8.05(b)
(regardless of whether or not the Company would in fact exercise its
rights under Section 8.05(b)) would (i) result in REIT Shares being
owned by fewer than 100 persons (determined without reference to any
rules of attribution), (ii) result in the Company being "closely held"
within the meaning of Section 856(h) of the Code, (iii) cause the
Company to own, directly or constructively, 10% or more of the
ownership interests in a tenant of the Company's, the Partnership's or
a Subsidiary's real property, within the meaning of Section
856(d)(2)(B) of the Code, (iv) in the good faith opinion of the Board
of Directors of the Company, otherwise disqualify the Company as a
REIT, or (v) in the opinion of counsel for the Company, constitute or
result in a violation of Section 5 of the Securities Act of 1933, as
amended (the "Securities Act"), or cause the acquisition of REIT
Shares by such Partner to be "integrated" with any other distribution
of REIT Shares for purposes of complying with the registration
provisions of the Securities Act. The Company, in its sole and
absolute discretion, may waive the restriction on redemption set forth
in this Section 8.05(c); provided, however, that in the event such
restriction is waived, the Redeeming Partner shall be paid the Cash
Amount. Notwithstanding the foregoing, each Class A Partner shall be
entitled to exercise its Redemption Right with respect to the Class A
Partnership Units regardless of whether the issuance of REIT Shares to
such Class A Partner would violate the restrictions set forth above,
provided that the Class A Partner shall receive the Cash Amount in
connection with such redemption."
"(d) Any Cash Amount to be paid by the Partnership to a
Redeeming Partner pursuant to Section 8.05(a), and any Cash Amount or
REIT Shares Amount to be paid by the General Partner to a Redeeming
Partner pursuant to Section 8.05(b), shall be paid within 20 Business
Days, or with respect to a Redeeming Partner who is a Class A Partner,
five Business Days, after the initial date of receipt by the General
Partner of the Notice of Redemption relating to the Partnership Units
to be redeemed; provided, however, that such 20 Business Day period,
but not the five Business Day period, may be extended for up to an
additional 180-day period to the extent required for the Company to
issue and sell securities the proceeds of which will be contributed to
the Partnership to provide cash for payment of the Cash Amount.
Notwithstanding the foregoing, the General Partner agrees to use its
best efforts to cause the closing of the acquisition of redeemed
Partnership Units hereunder to occur as quickly as reasonably
possible."
(b) The following are hereby added to Section 8.05 of the
Partnership Agreement as Sections 8.05(g) and 8.05(h), respectively:
"(g) If a Class A Partner exercises its Redemption Right
with respect to Class A Partnership Units and the Partnership elects
to pay the Cash Amount with respect to such redemption and does not
pay such amount to such
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Class A Partner by the Class A Specified Redemption Date then on such
date the Partnership shall issue such Class A Partner a promissory
note (the "Class A Note"). The Class A Note shall be payable within 30
calendar days and will bear interest at a rate per annum equal to
LIBOR plus 90 basis points. Payment of the Class A Note shall be
guaranteed by the General Partner. For purposes of this Section
8.05(g), "LIBOR" means the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the date the Class A Note is issued for a term
of 30 days. If for any reason such rate is not available, the term
"LIBOR" shall mean the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the
date the Class A Note is issued for a term of 30 days; provided,
however, if more than one rate is specified on the Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates."
"(h) Notwithstanding anything set forth in this Agreement to
the contrary, if a Class A Partner delivers a Notice of Redemption, a
Partnership Record Date subsequently occurs with respect to a
distribution to the Class A Partners pursuant to Section 5.02 and such
distribution is not distributed prior to the Class A Specified
Redemption Date, then the Class A Partner whose Class A Partnership
Units are redeemed on such date shall be entitled to receive the
distribution pursuant to Section 5.02(a) with respect to such Class A
Partnership Units notwithstanding such redemption unless such Class A
Partnership Units are redeemed for REIT Stock and such Class A
Specified Redemption Date occurs on or before the record date for the
payment of a dividend on such REIT Stock that is payable in respect of
the same period as such distribution on the Class A Partnership Units
so redeemed, in which event the distribution made to such Class A
Partner pursuant to Section 5.02(a) shall be reduced by the amount of
such dividend on the REIT Stock."
9. Transfer. Section 9.02 of the Partnership Agreement is hereby
amended by the addition of the following as Sections 9.02(f) and 9.02(g) and
renumbering Section 9.02(f) of the Partnership Agreement as Section 9.02(h):
"(f) Notwithstanding Section 9.02(a), a Class A Partner may
transfer the Class A Partnership Units held by such Class A
Partner to (i) any Person who, directly or indirectly, owned an
equity interest in such Class A Partner immediately prior to such
transfer, (ii) any Family Member of such Class A Partner, (iii)
any trust of which a Person described in clause (i) of this
Section 9.02(f) or a Family Member of such Person or such Class A
Partner and/or a bona fide tax-exempt charitable organization are
the sole beneficiaries and (iv) any bona fide tax-exempt
charitable organization in connection with a bona fide gift or
donation. Further, notwithstanding Section 9.02(a), a Class A
Partner may pledge
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the Class A Partnership Units held by such Class A Partner (i) as
set forth in Section 7.04 of the respective Contribution
Agreements and (ii) to a lending institution to secure a bona
fide loan or extension of credit made by such lending institution
to such Class A Partner and, upon such lending institution
exercising its remedy, if any, to foreclose and take possession
of such Class A Partnership Units and taking possession of such
Class A Partnership Units with respect to a default under such
loan or extension of credit and compliance by such lending
institution with the provisions of Section 9.03(a), the General
Partner will consent to the admission of such lending institution
to the Partnership as a Substitute Limited Partner
notwithstanding the provisions of Section 9.03(a)(vii); provided
that notwithstanding the foregoing the General Partner may
withhold such consent if the General Partner in its sole
discretion determines that there is a reasonable business purpose
for the Partnership not to admit such lending institution as a
Substitute Limited Partner."
"(g) Notwithstanding anything set forth in this Agreement to
the contrary, no transfer of a Class A Partnership Unit is
permitted without the consent of the General Partner, which
consent may be given or withheld in its sole and absolute
discretion, if such transfer would result in more than eighty
(80) "partners" of the Partnership holding all outstanding Class
A Partnership Units for purposes of Section II.A of Internal
Revenue Service Notice 88-75, 1988-2 C.B. 386."
10. Class A Voting Rights. The Partnership Agreement is hereby
amended by the addition of the following as a new Section 11.03:
"11.03 Class A Voting Rights.
(a) So long as any Class A Partnership Units remain outstanding,
neither the General Partner nor the Partnership shall, without the
affirmative vote of the Class A Partners holding at least a majority of the
Class A Partnership Units then outstanding increase the authorized or
issued amount of Class A Partnership Units or reclassify any Partnership
Interest into Class A Partnership Units or create, authorize or issue any
obligations or security convertible into or evidencing the right to
purchase any Class A Partnership Units. Further, subject to the
Partnership's rights set forth in Section 7.03(g) of the respective
Contribution Agreements during the Tax Protection Period (as defined in
such Contribution Agreements), the consent of the Class A Partners holding
at least a majority of the Class A Partnership Units then outstanding will
be required to approve any merger, acquisition or other fundamental
transaction involving the Partnership, unless (i) the holders of such Class
A Partnership Units will not recognize a taxable gain in the transaction
and the tax protections set forth in Section 7.03 of each of the
Contribution Agreements are preserved following such merger, acquisition or
other fundamental transaction, (ii) the Class A Partners are offered a
portion of the consideration offered to the holders of Limited Partner
Interests which is in proportion to the Value of their respective
Partnership Interests, (iii) the value, as determined in good faith by the
General Partner, of the liquidation, redemption rights and preferences of
the
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Class A Limited Partners set forth in this Agreement, either in respect of
the Partnership or another limited partnership, limited liability company
or other "pass-through" entity for federal income tax purposes which
succeeds to the interests of or is the survivor of a transaction with the
Partnership, are preserved in connection with such merger, acquisition or
other fundamental transaction and (iv) the Class A Limited Partners' fixed
or guaranteed entitlements or preferences as to dividends or distributions
as set forth herein are preserved and the other relative rights,
preferences and privileges of the Class A Partnership Units are maintained.
(b) So long as any Class A Partnership Units remain outstanding,
no amendment or modification to this Agreement that adversely affects the
relative rights, preferences or privileges of the Class A Partnership Units
shall be effective without the prior written approval of Class A Partners
holding at least a majority of the Class A Partnership Units then
outstanding."
11. Offset. Except as otherwise provided in a written agreement
between a Class A Partner and the Partnership, the Partnership agrees that it
will not exercise any right to offset amounts payable to a Contributor as
distributions pursuant to the Partnership Agreement or in connection with a
redemption of Class A Partnership Units by a Contributor against any amounts
owed by such Contributor to the Partnership.
12. Additional Agreements. The Parties agree that (a) the Class A
Partnership Units will be evidenced by certificates in accordance with Section
2.06 of the Partnership Agreement and (b) the Class A Partnership Units will be
subject to the provisions set forth in Article VII of the Contribution
Agreements.
13. Continuing Effect of Partnership Agreement. Except as
specifically amended by this Amendment, the Partnership Agreement is hereby
ratified and confirmed in its entirety and shall remain and continue in full
force and effect. All references in any document to the Partnership Agreement
shall mean the Partnership Agreement, as amended hereby.
14. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement. Signatures to this Amendment may be
transmitted by facsimile and such transmission shall be deemed an original.
{Signature Pages Follow}
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
by their respective authorized representatives as of the Effective Date.
UNITED DOMINION REALTY TRUST, INC., a
Maryland corporation
By: /s/ W. Mark Wallis
---------------------------------------
Name: W. Mark Wallis
Title: Senior Executive Vice President
UNITED DOMINION REALTY, L.P., a Virginia
limited partnership
By: United Dominion Realty Trust, Inc.,
a Maryland corporation, its General
Partner
By: /s/ W. Mark Wallis
----------------------------------
Name: W. Mark Wallis
Title: Senior Executive
Vice President
"Contributors"
MESA VERDE VILLAS II, L.P.,
a California limited partnership
By: B&B Mortgage, Inc., a California
corporation, its General Partner
By: /s/ David T. Beauchamp
----------------------------------
David T. Beauchamp
its Secretary
M.V. JV, LLC,
a California limited liability company
By: DB Holdings, L.P., a California
limited partnership, its Manager
By: DTB Holdings, LLC,
a California limited liability
company, its Managing General
Partner
By: /s/ David T. Beauchamp
-----------------------------
David T. Beauchamp
its Managing Member
WINDJAMMER APARTMENTS, L.P.,
a California limited partnership
By: W/Jammer, LLC,
a California limited liability
company, its General Partner
By: MLB Development,
a California limited
partnership, its Manager
By: Midlands Company,
a Delaware corporation
its General Partner
By: /s/ David T. Beauchamp
------------------------
David T. Beauchamp
its President
By: Midlands Company,
a Delaware corporation,
its Manager
By: /s/ David T. Beauchamp
----------------------------------
David T. Beauchamp
its President
MLB DEVELOPMENT, L.P.,
a California limited partnership
By: Watco, Inc.
a California corporation,
Its General Partner
By: /s/David T. Beauchamp
----------------------------------
David T. Beauchamp
Its President
1999 BEAUCHAMP SPECIAL TRUST - DTB
EXEMPT TRUST, DATED MAY 1, 1999
By: /s/ David T. Beauchamp
---------------------------------------
David T. Beauchamp
Its General Partner
1999 BEAUCHAMP SPECIAL TRUST - RFB
EXEMPT TRUST, DATED MAY 1, 1999
By: /s/ Robert F. Beauchamp, Sr.
---------------------------------------
Robert F. Beauchamp, Sr.
Its General Partner
1999 BEAUCHAMP SPECIAL TRUST - RLB
EXEMPT TRUST, DATED MAY 1, 1999
By: /s/ Richard L. Beauchamp
---------------------------------------
Richard L. Beauchamp
Its General Partner
1999 BEAUCHAMP SPECIAL TRUST - BG
EXEMPT TRUST, DATED MAY 1, 1999
By: /s/ Beverley Grimstad
---------------------------------------
Beverley Grimstad
Its Trustee
1999 BEAUCHAMP SPECIAL TRUST - DBR
EXEMPT TRUST, DATED MAY 1, 1999
By: /s/ Dorothy Beauchamp Riechers
---------------------------------------
Dorothy Beauchamp Riechers
Its General Partner
THE BEAUCHAMP FAMILY TRUST DATED
APRIL 5, 1990, AS AMENDED
By: /s/ David T. Beauchamp
---------------------------------------
David T. Beauchamp
Its Trustee
THE GRANDCHILDREN'S POT TRUST
CREATED UNDER THE BEVERLEY
GRIMSTAD 2001 GRANT TRUST u/d/t 6/15/01
By: /s/ John Andor Grimstad
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John Andor Grimstad
Its Trustee
THE TIMOTHY SCOTT WAGNER REVOCABLE
TRUST DATED 6/1/88, AS AMENDED
By: /s/ Timothy S. Wagner
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Timothy S. Wagner
Its Trustee
APPENDIX A
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Capital Class A
Additional Limited Partners and Address Contribution Partnership Units
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1. Midlands Company c/o United Dominion Realty Trust, 1,866,366.04 112,364
Inc., 1745 Shea Center Drive, Suite 200, Highlands
Ranch, CO 80129
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2. Mesa Verde Villas II, L.P., c/o Beauchamp Realty, 6,296,136.77 379,057
Inc., 1641 Langley Avenue, Irvine, CA 92614
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3. Windjammer Apartments, L.P., c/o Beauchamp Realty, 3,393,223.68 204,288
Inc., 1641 Langley Avenue, Irvine, CA 92614
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4. MLB Development, L.P., c/o Beauchamp Realty, Inc., 8,466,831.23 509,743
1641 Langley Avenue, Irvine, CA 92614
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5. The Timothy Scott Wagner Revocable Trust dated 698,716.26 42,066
6/1/88, as amended, Timothy S. Wagner as Trustee,
c/o Beauchamp Realty, Inc., 1641 Langley Avenue,
Irvine, CA 92614
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6. 1999 Beauchamp Special Trust - DTB Exempt Trust 924,745.14 55,674
dated May 1, 1999, David T. Beauchamp as Trustee,
c/o Beauchamp Realty, Inc., 1641 Langley Avenue,
Irvine, CA 92614
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7. 1999 Beauchamp Special Trust - RLB Exempt Trust 924,745.14 55,674
dated May 1, 1999, Richard L. Beauchamp as Trustee,
c/o Beauchamp Realty, Inc., 1641 Langley Avenue,
Irvine, CA 92614
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8. 1999 Beauchamp Special Trust - RFB Exempt Trust 924,745.14 55,674
dated May 1, 1999, Robert F. Beauchamp, Sr. as
Trustee, c/o Beauchamp Realty, Inc., 1641 Langley
Avenue, Irvine, CA 92614
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9. 1999 Beauchamp Special Trust - BG Exempt Trust dated 924,745.14 55,674
May 1, 1999 Beverley Grimstad as Trustee, c/o
Beauchamp Realty, Inc., 1641 Langley Avenue, Irvine,
CA 92614
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A-1
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Capital Class A
Additional Limited Partners and Address Contribution Partnership Units
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10. 1999 Beauchamp Special Trust - DBR Exempt Trust 924,745.14 55,674
dated May 1, 1999, Dorothy Beauchamp Riechers as
Trustee, c/o Beauchamp Realty, Inc., 1641 Langley
Avenue, Irvine, CA 92614
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11. Beauchamp Family Trust dated April 15, 1990 as 1,696,611.84 102,144
amended, David T. Beauchamp as Trustee, c/o
Beauchamp Realty, Inc., 1641 Langley Avenue, Irvine,
CA 92614
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12. The Grandchildren's Pot Trust created under the 16,696,611.84 102,144
Beverley Grimstad 2001 Grantor trust, John Grimstad
as Trustee, c/o Beauchamp Realty, Inc., 1641
Langley Avenue, Irvine, CA 92614
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A-2