UDR, INC. 16,000,000 Shares Common Stock ($0.01 par value) Underwriting Agreement
Exhibit 1.1
16,000,000 Shares
Common Stock
($0.01 par value)
Common Stock
($0.01 par value)
September 8, 2010
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇▇▇ Fargo Securities, LLC
c/o
|
Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated | |
| ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇ Fargo Securities, LLC | ||
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| as Representatives of the several Underwriters | ||
| identified on Schedule A hereto |
Ladies and Gentlemen:
UDR, Inc., a corporation organized under the laws of Maryland (the “Company,” which term, as
used herein, includes its predecessor United Dominion Realty Trust, Inc., a Virginia corporation
(the “Predecessor”)), proposes to issue and sell to the several underwriters named in Schedule A
attached hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as
representatives, 16,000,000 shares of Common Stock, $0.01 par value (the “Common Stock”), of the
Company (said shares to be issued and sold by the Company being hereinafter called the “Firm
Securities”), and for the purpose of covering over-allotments in connection with the sale of the
Firm Securities, at the option of the Representatives, up to an additional 2,400,000 shares (the
“Option Securities”) of Common Stock. The Firm Securities and the Option Securities are referred to
herein as the “Underwritten Securities” or the “Securities.” To the extent there are no additional
Underwriters listed on Schedule A other than you, the term Representatives as used herein shall
mean you, as Underwriter, and the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. To the extent that there is only a single Underwriter
listed on Schedule A, then references to the “several” Underwriters shall be disregarded. Certain
terms used, and not otherwise defined, herein are defined in Section 17 hereof.
As used herein, the term “subsidiary” means a corporation, real estate investment trust,
partnership or limited liability company a majority of the outstanding voting stock or beneficial,
partnership or membership interests, as the case may be, of which is owned or controlled, directly
or indirectly, by the Company or by one or more other subsidiaries of the Company, including,
without limitation, United Dominion Realty L.P., a Delaware limited partnership (“UDR Operating
Partnership”).
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement (file number 333-156002) on Form S-3,
covering the registration of certain securities, including the Securities, under the Securities Act
of 1933, as amended (the “1933 Act”), including the related preliminary prospectus, which
registration statement became effective upon filing under Rule 462(e) (“Rule 462(e)”) of the rules
and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”). Such
registration statement, at each time of effectiveness under the 1933 Act and the 1933 Act
Regulations, including post-effective amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents
otherwise deemed to be a part thereof pursuant to Rule 430B of the 1933 Act Regulations (“Rule
430B”), excepting therefrom, for purposes of clarity, any free writing prospectus (as defined in
Rule 405 of the 1933 Act Regulations (“Rule 405”), a “free writing prospectus”), is referred to
herein as the “Registration Statement”; provided, however, that all references to
the “Registration Statement” shall be deemed to include information contained in a prospectus
supplement (whether in preliminary or final form) relating to the Securities that is deemed to be a
part of such Registration Statement as of the time specified in Rule 430B, excepting therefrom, for
purposes of clarity, any free writing prospectus. Any information relating to the offering of the
Securities that was omitted from such Registration Statement at the time it originally became
effective but that is deemed to be a part of and included in such registration statement pursuant
to Rule 430B is referred to herein as the “Rule 430B Information.” Each prospectus and prospectus
supplement used in connection with the offering of the Securities that omitted Rule 430B
Information, including the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, excepting therefrom, for purposes of clarity,
any free writing prospectus, are collectively referred to herein as the “preliminary prospectus.”
Promptly after execution and delivery of this Agreement, the Company will prepare and file a
prospectus supplement relating to the Securities in accordance with the provisions of Rule 430B and
Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”). The final prospectus and the final
prospectus supplement, in the form first furnished or made available to the Underwriters for use in
connection with the offering of the Securities, including the documents incorporated or deemed to
be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time
of the execution of this Agreement, excepting therefrom, for purposes of clarity, any free writing
prospectus, are collectively referred to herein as the “Prospectus”. For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“▇▇▇▇▇”).
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All references in this Agreement to financial statements (including notes) and schedules and
other information which is “contained,” “included,” “disclosed” or “stated” (or other references of
like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to include all such financial statements (including notes) and schedules and other
information which is incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus at the relevant time of effectiveness, issuance or execution of this
Agreement, as the case may be, pursuant to the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and all references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to include the information
which is incorporated by reference in the Registration Statement, such preliminary prospectus or
the Prospectus, as the case may be, after such time pursuant to the 1934 Act.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Registration Statement became effective upon filing under Rule 462(e) on
December 8, 2008. No stop order suspending the effectiveness of the Registration Statement,
or notice objecting to its use, has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the Commission for additional
information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the
original filing of the Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations (“Rule 163(c)”)) has been filed with the Commission in accordance with the
exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise
complied with the requirements of Rule 163, including, without limitation, the legending
requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act
provided by Rule 163.
At the respective times the Registration Statement and each amendment thereto became
effective, at the date of this Agreement, at each “new effective date” within the meaning of
Rule 430B(f)(2) and at the Closing Date (and, if any Option Securities are purchased, at
each Option Closing Date), the Registration Statement and each amendment thereto complied,
comply and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not, do not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
None of any preliminary prospectus, the Prospectus or any amendment or supplement, to
any preliminary prospectus or the Prospectus, at the date of this Agreement, at the time
such preliminary prospectus, the Prospectus or any such amendment or supplement to any
preliminary prospectus or the Prospectus was, is or will be issued or at the Closing Date
(or, if any Option Securities are purchased, at any Option Closing Date), included, includes
or will include an untrue statement of a material fact or
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omitted, omits or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading. Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 of the 1933 Act Regulations, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus and the Prospectus
delivered or made available to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
At the Applicable Time (as defined below), (i) the Statutory Prospectus (as defined
below), (ii) any Issuer Free Writing Prospectus (as defined below) issued at or prior to the
Applicable Time that is attached hereto as (or identified on) Schedule C and (iii) the
information agreed to in writing by the Company and the Underwriters as set forth on
Schedule B hereto as the information to be conveyed by the Underwriters to purchasers of
Securities at the Applicable Time, all considered together (collectively, the “Disclosure
Package”), did not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. No Issuer Free Writing Prospectus
exists other than those listed on Schedule C hereto.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 8:45 A.M. (New York City time) on September 8, 2010 or such
other time as agreed by the Company and the Underwriters as set forth in Schedule B hereto.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act (“Rule 433”), relating to the Securities that (i) is required to
be filed with the Commission by the Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Securities or of the offering thereof that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to such time, including the
documents incorporated by reference therein immediately prior to such time and any
preliminary prospectus relating to the Securities that is deemed to be a part of and
included in the Registration Statement pursuant to Rule 430B immediately prior to such time.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or the Disclosure Package made
in reliance upon and in conformity with information furnished to the
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Company in writing by any Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus or the Disclosure Package.
(b) (A) At the time of the original filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), (C) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption of Rule 163 and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer”, as defined in Rule 405, including not having been and not
being an “ineligible issuer”, as defined in Rule 405
(an “Ineligible Issuer”). The
Registration Statement is an “automatic shelf registration statement,” as defined in Rule
405, and the Securities, since their registration on the Registration Statement, have been
and remain eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement”. The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic
shelf registration statement form.
At the time of the original filing of the Registration Statement, at the earliest time
thereafter that the Company or any other offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
of this Agreement, the Company was not and is not an Ineligible Issuer without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(c) No Issuer Free Writing Prospectus, if any, as of its issue date or at any time
prior to the completion of the offering and sale of the Securities, unless the Company has
notified the Underwriters pursuant to Section 5(e) hereof, included, includes or will
include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Prospectus or any preliminary prospectus,
including any document incorporated by reference therein that has not been superseded or
modified. The foregoing sentence does not apply to statements in or omissions from any such
Issuer Free Writing Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the Representatives expressly
for use therein.
(d) The Company has not made, used, prepared, authorized, approved or referred to, and
will not make, use, prepare, approve or refer to, any “written communication” (as defined in
Rule 405) in connection with the offering and sale of the Securities other than (A) the
Registration Statement, (B) any preliminary prospectus, (C) the Prospectus, (D) any Issuer
Free Writing Prospectus that has been reviewed and consented to by the Representatives
pursuant to Section 5(f) hereof and attached hereto as Schedule C or (E) any communication
permitted under Rule 134 of the 1933 Act Regulations
(“Rule 134”).
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(e) The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Prospectus or any preliminary prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”), and, when read together with the other
information in the Statutory Prospectus, at the time the Registration Statement or any
amendment thereto became effective, at the earlier of the time the Prospectus was first used
or the date and time of the first contract of sale of Securities, and at the Closing Date
(and, if any Option Securities are purchased, at each Option Closing Date), did not, do not
and will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Each of the Company and its subsidiaries has been duly incorporated or formed, as
applicable, and is validly existing as a corporation, limited liability company, real estate
investment trust or partnership, as the case may be, in good standing under the laws of the
jurisdiction in which it is chartered or organized with full power and authority to own or
lease, as the case may be, and to operate its properties and conduct its business as
described in the Registration Statement, the Prospectus or the Disclosure Package, and is
duly qualified to do business as a foreign corporation, limited liability company, real
estate investment trust or partnership, as the case may be, and is in good standing under
the laws of each jurisdiction which requires such qualification (except in any case in which
the failure to so qualify or to be in good standing would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the
Registration Statement, the Prospectus or the Disclosure Package (exclusive of any
supplement thereto)).
(g) All the outstanding partnership interests of each Operating Partnership have been
duly authorized and validly issued, are fully paid and (except in the case of general
partnership interests) non-assessable, and, except as otherwise disclosed in the
Registration Statement, the Prospectus and the Disclosure Package and except for minority
interests in the UDR Operating Partnership described in the Registration Statement, the
Prospectus and the Disclosure Package, are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances; and the Company and/or one or more
subsidiaries of the Company are the only members or general partners of the Company’s
limited liability company or limited partnership subsidiaries, as applicable, and own the
entire membership or general partnership interest in each such subsidiary free and clear of
any perfected security interest or any other security interests, claims, liens or
encumbrances.
(h) The Company’s authorized equity capitalization is as set forth in the Registration
Statement, the Prospectus and the Disclosure Package; the capital stock of the Company
conforms in all material respects to the description thereof contained in the Registration
Statement, the Prospectus and the Disclosure Package; the outstanding
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shares of the Common Stock and the outstanding shares of the Company’s preferred stock,
no par value per share, have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities have been duly and validly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid
and nonassessable; no holder or beneficial owner of shares of capital stock of the Company
will be subject to personal liability by reason of being such a holder or beneficial owner;
the Securities are duly listed, and admitted and authorized for trading, subject to official
notice of issuance, on the New York Stock Exchange (“NYSE”); the certificates for the
Securities are in valid and sufficient form.
(i) Neither the holders of outstanding shares of capital stock of the Company nor the
holders of any of the Company’s other outstanding securities are entitled to preemptive or
other rights to subscribe for the Securities. Except as set forth in the Registration
Statement, the Prospectus and the Disclosure Package, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership interests in
the Company are outstanding.
(j) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement or to any report filed with the Commission under the 1934 Act
which has not been so described or filed; and the statements in the Registration Statement,
the Prospectus and the Disclosure Package under the headings “Description of Capital
Stock—Common Stock” and “Federal Income Tax Considerations” insofar as such statements
constitute matters of law or legal conclusions, are correct in all material respects.
(k) This Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of
creditors’ rights generally or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(l) The Company is not, and upon the issuance and sale of the Securities as herein
contemplated, the application of any net proceeds therefrom as described in the Registration
Statement, the Prospectus and the Disclosure Package will not be, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.
(m) No consent, approval, authorization, filing with or order of any court or
governmental agency or regulatory body is required in connection with the transactions
contemplated herein, except such as have been obtained under the 1933 Act or the 1933 Act
Regulations and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Registration Statement and the Prospectus.
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(n) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws or other organizational documents of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or bound or to which
its or their property is subject (except in any case in which such would not have a material
adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or contemplated
in the Registration Statement, the Prospectus or the Disclosure Package (exclusive of any
supplement thereto)), or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties (except in any
case in which such would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement, the
Prospectus and the Disclosure Package (exclusive of any supplement thereto)).
(o) Except for certain registration rights of holders of units of limited partnership
interests in the UDR Operating Partnership pursuant to the terms of the Contribution
Agreement dated June 19, 2003, among ▇▇▇▇▇▇▇ Associates, a Virginia general partnership, the
UDR Operating Partnership and the Company, no holders of securities of the Company have
rights to the registration of such securities under the Registration Statement.
(p) The financial statements together with related notes and schedules of the Company
and its subsidiaries and of any companies, other entities or properties acquired or to be
acquired by the Company, as set forth or incorporated by reference in the Registration
Statement, the Prospectus or the Disclosure Package, present fairly the financial position,
results of operations and cash flows of the Company and its subsidiaries and of such
companies, entities and properties, as the case may be, at the indicated dates and for the
indicated periods. Such financial statements comply as to form with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and have been prepared
in accordance with United States generally accepted accounting principles (“GAAP”),
consistently applied throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made (except to the extent that, in
accordance with the 1934 Act and the 1934 Act Regulations, certain footnotes have been
omitted from the financial statements included in the Company’s Quarterly Reports on Form
10-Q incorporated by reference in the Registration Statement, the Prospectus and the
Disclosure Package). The summary financial and statistical data, if any, included in the
Registration Statement, the
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Prospectus or the Disclosure Package present fairly the information shown therein and
have been compiled on a basis consistent with the financial statements presented in the
Registration Statement, the Prospectus or the Disclosure Package; the Company is not
required to include any financial statements of any other entity or business or any pro
forma financial statements in the Registration Statement, the Prospectus or the Disclosure
Package under the 1933 Act or the 1933 Act Regulations or in any document required to be
filed with the Commission under the 1934 Act or the 1934 Act Regulations.
(q) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Registration Statement, the Prospectus and the Disclosure Package, any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Registration Statement, the
Prospectus and the Disclosure Package.
(r) Since the respective dates as of which information is given in the Registration
Statement, the Prospectus and the Disclosure Package, there has not been any material change
in the capital stock, total assets or material increase in the long-term debt of the Company
or any of its subsidiaries, or material change in any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of capital stock,
or any material adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position, shareholders’
equity or results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Registration Statement, the Prospectus and the Disclosure
Package. Neither the Company nor any of its subsidiaries has entered into any transaction or
agreement not in the ordinary course of business which is material to the Company and its
subsidiaries considered as a whole or incurred any liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries considered as a whole.
(s) No action, suit or proceeding by or before any court or governmental agency,
authority or regulatory body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Disclosure Package (exclusive of any supplement thereto).
(t) Each of the Company and each of its subsidiaries owns or leases all such properties
as are necessary to the conduct of its operations as presently conducted (except in any case
in which the failure to own or lease any such properties would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
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business or properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business).
(u) Neither the Company nor any subsidiary is in violation or default of (i) any
provision of its charter or bylaws or other organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party or bound or
to which its property is subject (except in any case in which such would not have a material
adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or contemplated
in the Registration Statement, the Prospectus and the Disclosure Package (exclusive of any
supplement thereto)), or (iii) any statute, law, rule, regulation, judgment, order or decree
of any court, governmental agency, regulatory body, administrative agency, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or any of its
properties (except in any case in which such would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Disclosure Package (exclusive of any supplement thereto)),
as applicable.
(v) Ernst & Young LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Registration Statement, the
Prospectus or the Disclosure Package, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations and the Public Company Accounting Oversight Board
(United States), and to the Company’s knowledge, Ernst & Young LLP has not engaged in any
activity with respect to the Company that is prohibited by any of the subsections (g)
through (l) of Section 10A of the 1934 Act.
(w) There are no transfer taxes or other similar fees or charges under Federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities hereunder.
(x) Each of the Company and its subsidiaries has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions thereof (except
in any case in which the failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Disclosure Package (exclusive of any supplement thereto))
and has paid all taxes required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not
have a material adverse effect on the condition (financial or
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otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Registration Statement,
the Prospectus and the Disclosure Package (exclusive of any supplement thereto).
(y) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company’s knowledge, is threatened or imminent, that could
have a material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, and the Company
is not aware of any existing or imminent labor disturbance by the employees of any of its or
its subsidiaries’ principal suppliers, contractors or customers, that could have a material
adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or contemplated
in the Registration Statement, the Prospectus and the Disclosure Package (exclusive of any
supplement thereto).
(z) The Company and each of its subsidiaries are adequately insured by insurers of
recognized financial responsibility against all losses and risks (except in any case in
which such would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business); all policies of insurance and fidelity or surety bonds insuring the Company or
any of its subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights
clause (except in any case in which such would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Disclosure Package (exclusive of any supplement thereto));
and neither the Company nor any such subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement, the
Prospectus and the Disclosure Package (exclusive of any supplement thereto).
(aa) Except as described in the Registration Statement, the Prospectus and the
Disclosure Package, the Company and its subsidiaries have good and marketable title to all
real properties owned by them (each, a “Property” and collectively, the
11
“Properties”), in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use made or to be made
thereof by them; the Company or its subsidiaries have obtained an owner’s title insurance
policy in an amount at least equal to the cost of acquisition from a title insurance company
with respect to each of its real estate properties; except as disclosed in the Registration
Statement, the Prospectus and the Disclosure Package, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases, with no exceptions
that would materially interfere with the value thereof or materially interfere with the use
made or to be made thereof by them; neither the Company nor its subsidiaries has knowledge
of any pending or threatened condemnation proceeding, zoning change, or other proceeding or
action that will in any manner affect the size of, use of, improvements on, construction on
or access to any of the Properties (except in any case in which such would not have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business).
(bb) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as required by the terms of the Company’s
indebtedness described in the Registration Statement, the Prospectus and the Disclosure
Package.
(cc) The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses (except in any case in which
failure to possess such would not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Registration Statement,
the Prospectus and the Disclosure Package (exclusive of any supplement thereto)), and
neither the Company nor any such subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure
Package (exclusive of any supplement thereto).
(dd) The Company maintains a system of internal accounting and other controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets, (iii) access to assets is permitted only in
12
accordance with management’s general or specific authorization, (iv) the recorded
accounting for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences and (v) the principal executive
officers (or their equivalents) and principal financial officers (or their equivalents) of
the Company have made all certifications required by Sections 302 and 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and any related rules and regulations
promulgated by the Commission, and the statements contained in any such certification are
complete and correct. Except as described in the Registration Statement, the Prospectus and
the Disclosure Package, with respect to stock options or other equity incentive grants
granted subsequent to the adoption of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act on July 31, 2002 pursuant to
the equity-based compensation plans of the Company and its subsidiaries (the “Equity
Plans”), (i) no stock options have been granted with an exercise price based upon a price of
the Common Stock on a date occurring prior to the date of approval of such grant, (ii) each
such grant was made in accordance with the material terms of the Equity Plans, the 1934 Act,
the 1934 Act Regulations and all other applicable laws and regulatory rules or requirements,
including the rules of the NYSE, and (iii) each such grant has been properly accounted for
in accordance with GAAP in the financial statements (including the related notes) of the
Company and disclosed in the Company’s filings with the Commission.
(ee) Except as disclosed in the Registration Statement, the Prospectus and the
Disclosure Package, since the end of the Company’s most recent audited fiscal year, there
has been no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the 1934
Act Regulations) in accordance with the rules and regulations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
the 1933 Act and the 1934 Act.
(ff) Since July 30, 2002, the Company has not, in violation of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
directly or indirectly, including through a subsidiary, extended or maintained credit,
arranged for the extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any executive officer or director of the Company.
(gg) The Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii) in connection
therewith and with the process leading to such transaction each Underwriter is acting solely
as principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed
an advisory or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) or any other obligations
of the Company except the obligations expressly set forth in this Agreement and (iv) the
Company has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters have rendered
advisory services of any
13
nature or respect, or owe a fiduciary or similar duty to the Company, in connection
with the offering of the Securities or the process leading thereto.
(hh) Neither the Company nor any affiliate of the Company has taken or will take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the 1934 Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale
of the Securities.
(ii) Except pursuant to this Agreement and as described in the Registration Statement,
the Prospectus and the Disclosure Package, there are no contracts, agreements or
understandings between the Company, the UDR Operating Partnership or any subsidiaries and
any person relating to a brokerage commission, finder’s fee or other like payment in
connection with the offering, issuance and sale of the Securities.
(jj) The Company and its subsidiaries (i) are in compliance with any and all applicable
Environmental Laws, (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and all such permits, licenses and approvals remain in full force and
effect, and (iii) have not received and are not aware of any pending or threatened notice of
any actual or potential liability for the investigation or remediation or any disposal or
release of Hazardous Substances or for any other non-compliance with Environmental Laws,
except where such non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or any such actual or potential liability would not,
individually or in the aggregate, result in a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Registration Statement,
the Prospectus and the Disclosure Package (exclusive of any supplement thereto). Except as
set forth in the Registration Statement, the Prospectus and the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has been named as a “potentially responsible
party” under the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, and (ii) to the Company’s knowledge, Hazardous Substances have not been
released or disposed in, on, under or near the Properties.
(kk) Each of the Company and its subsidiaries has fulfilled its obligations, if any,
under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement
Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations
thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such regulations and
published interpretations (except in any case in which failure to do such would not have a
material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
14
as set forth in or contemplated in the Registration Statement, the Prospectus and the
Disclosure Package (exclusive of any supplement thereto)). The Company and its subsidiaries
have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other
than for the payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA (except in any case in which such would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Registration
Statement, the Prospectus and the Disclosure Package (exclusive of any supplement thereto)).
(ll) The subsidiaries listed on Schedule D attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X.
(mm) The Company and its subsidiaries own, possess, license or have other rights to
use, on reasonable terms, all patents, patent applications, trade and service marks, trade
and service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) used in the conduct of the Company’s business as now conducted or
as proposed in the Registration Statement, the Prospectus and the Disclosure Package to be
conducted (except in any case in which such would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business). To the Company’s knowledge, (a) there is no material
infringement by third parties of any such Intellectual Property; (b) there is no pending or
threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any such Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (c) there is no pending or threatened action,
suit, proceeding or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; and (d) there is no pending or threatened action, suit, proceeding
or claim by others that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the Company is unaware of
any other fact which would form a reasonable basis for any such claim.
(nn) The Company has been and is organized and has operated in conformity with the
requirements for qualification and taxation as a real estate investment trust (a “REIT”) for
each of its taxable years beginning with the taxable year ended December 31, 2006 through
its taxable year ended December 31, 2009, or any prior year where the Company’s failure to
so qualify could cause the Company to have a liability for taxes (whether in that year or
any subsequent year) for which the Internal Revenue Service is or will be entitled to assert
a claim, and its current organization and current and proposed method of operation will
enable it to continue to meet the requirements for qualification and taxation as a REIT for
the taxable year ending December 31, 2010 and thereafter. No transaction event has occurred
which could cause the Company not to be able to qualify as a REIT for its current taxable
year or any future taxable year. The
15
Company currently intends to continue to qualify as a REIT under the Internal Revenue Code of 1986, as
amended.
(oo) The UDR Operating Partnership is properly classified as a partnership, and not as
a corporation or as a publicly traded partnership taxable as a corporation, for Federal
income tax purposes throughout the period from its formation through the date hereof.
(pp) Each of the subsidiaries that is a partnership or a limited liability company
(other than an entity for which a taxable REIT subsidiary election has been made)
(“Subsidiary Partnerships”) is properly classified either as a disregarded entity or as a
partnership, and not as a corporation or as a publicly traded partnership taxable as a
corporation, for Federal income tax purposes throughout the period from its formation
through the date hereof, or, in the case of any Subsidiary Partnerships that have
terminated, through the date of termination of such Subsidiary Partnerships.
(qq) The Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(p) hereof in respect of all federal, state,
local and foreign income and franchise taxes for all periods as to which the tax liability
of the Company or any of the subsidiaries has not been finally determined.
(rr) Neither the issuance, sale and delivery of the Securities nor the application of
the proceeds thereof by the Company as described in the Registration Statement, the
Prospectus or the Disclosure Package will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ss) No forward-looking statement (within the meaning of Section 27A of the 1933 Act
and Section 21E of the ▇▇▇▇ ▇▇▇) contained in the Registration Statement, the Prospectus or
the Disclosure Package has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(tt) The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject
of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of
the Securities.
(uu) Nothing has come to the attention of the Company that has caused the Company to
believe that the statistical or other market-related data included in the Registration
Statement, the Prospectus or the Disclosure Package is not based on or derived from sources
that are reliable and accurate in all material respects
(vv) The operations of the Company are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws” and no action, suit
16
or proceeding by or before any court or governmental agency, authority or regulatory
body or any arbitrator involving the Company with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(ww) Neither the Company nor, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or person acting on behalf of the Company is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasure
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer or authorized signatory of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter as of the date or dates indicated in such certificate.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from
the Company, at the price per share set forth in Schedule B attached hereto, the number the Firm
Securities set forth opposite such Underwriter’s name in Schedule A attached hereto, plus any
additional number of Firm Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
In addition, the Company hereby grants to the Underwriters the option to purchase up to
2,400,000 Option Securities at the same purchase price per share to be paid by the Underwriters to
the Company for the Firm Securities as set forth in Schedule B attached hereto, for the sole
purpose of covering over-allotments in the sale of Firm Securities by the Underwriters. This
option may be exercised at any time and from time to time, in whole or in part, on or before the
thirtieth (30th) day following the date of the final prospectus supplement, by written
notice by you to the Company. Such notice shall set forth the aggregate number of Option
Securities as to which the option is being exercised and the date and time, as reasonably
determined by you, when the Option Securities are to be delivered (such date and time being herein
sometimes referred to as the “Option Closing Date”); provided, however, that the
Option Closing Date shall not be earlier than the Closing Date or earlier than the second full New
York business day after the date on which the option shall have been exercised nor later than the
eighth full New York business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of Section 9 hereof).
The number of Option Securities to be sold to each Underwriter shall be the number which bears
the same ratio to the aggregate number of Option Securities being purchased as the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule A attached hereto (or such
number increased as set forth in Section 9 hereof) bears to the total number of Firm Securities
being purchased from the Company, subject, however, to such
17
adjustments to eliminate any fractional shares as the Representatives in their sole discretion
shall make.
3. Delivery and Payment. Delivery of and payment for the Firm Securities shall be made
at 9:00 AM, New York City time, on September 13, 2010, or at such time on such later date not more
than three (four, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) New
York business days after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Firm Securities being herein
called the “Closing Date”). Delivery of the Firm Securities and the Option Securities shall be made
to the Representatives for the respective accounts of the several Underwriters against payment by
the several Underwriters through the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds to an account specified by the
Company. Delivery of the Firm Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
Certificates for the Firm Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives may request in writing at least
one full New York business day before the Closing Date or the relevant Option Closing Date, as the
case may be. The certificates for the Firm Securities and the Option Securities, if any, will be
made available for examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (New York City time) on the New York business day prior to the Closing Date
or the relevant Option Closing Date, as the case may be.
4. Offering by Underwriters. It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Prospectus and the Disclosure
Package.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company, subject to Section 5(b), will comply with the requirements of Rule
430B and will notify the Representatives promptly, and confirm the notice in writing, of (i)
when any post-effective amendment to the Registration Statement or a new registration
statement relating to the Securities shall become effective, or any preliminary prospectus,
the Prospectus or any amendment or supplement to any preliminary prospectus or the
Prospectus shall have been filed with the Commission, (ii) the receipt of any comments from
the Commission with respect to the Registration Statement, the documents incorporated or
deemed to be incorporated therein or the Prospectus, (iii) any request by the Commission for
any amendment to the Registration Statement or a new registration statement relating to the
Securities or any amendment or supplement to any preliminary prospectus or the Prospectus or
for additional information, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or such new registration statement, or any
notice objecting to its use, or of any order preventing, suspending or objecting to the use
of any preliminary prospectus or the Prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such
18
purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement or (v) the Company becoming the subject of a proceeding under Section
8A of the 1933 Act in connection with the offering of the Securities. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will use its best efforts to
prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof as soon as practicable. The Company shall pay the required Commission
filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the
1933 Act Regulations without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating
the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in
a post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
(b) The Company will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement or a new registration statement relating
to the Securities or any amendment, supplement or revision to either any preliminary
prospectus (including the prospectus included in the Registration Statement at the time it
originally became effective) or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any such document a
reasonable amount of time prior to such proposed filing or use, as the case may be, and will
not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) The Company has furnished or will deliver to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration Statement as originally
filed and any new registration statement relating to the Securities and, in each case, any
amendment thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein, to the extent
not otherwise publicly available on ▇▇▇▇▇) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives, without charge, a
conformed copy thereof (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and any new registration statement relating to the Securities and, in
each case, any amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus and any amendment or supplement thereto as such Underwriter may
reasonably request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish or make available to each Underwriter,
without charge, during the period when a prospectus is required under the 1933 Act or 1934
Act to be delivered (or but for the exemption afforded by Rule 172 of the 1933 Act
Regulations (“Rule 172”) would be required to be
19
delivered) to investors in connection with sales of the Securities, such number of
copies of the Prospectus and any amendment or supplement thereto as such Underwriter may
reasonably request. Each preliminary prospectus and the Prospectus and, in each case, any
amendment or supplement thereto furnished or made available to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration Statement, the
Prospectus and the Disclosure Package. If, at any time when a prospectus is required under
the 1933 Act or the 1934 Act to be delivered (or but for the exemption afforded by Rule 172
would be required to be delivered) to investors in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or to amend or supplement the Prospectus or the
Disclosure Package, as the case may be, in order that the Prospectus or the Disclosure
Package, as the case may be, will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made or the circumstances then prevailing, not
misleading, or if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement, amend or supplement the Prospectus or the Disclosure
Package or file a new registration statement relating to the Securities in order to comply
with law, including the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly notify the Representatives of any such event or condition and prepare
and file with the Commission (and use its best efforts to have any amendment to the
Registration Statement or any new registration statement containing the Prospectus to be
declared effective immediately (if it is not an automatic shelf registration statement)),
subject to Section 5(b) and 5(f) hereof, such new registration statement or amendment or
supplement, at its own expense, as may be necessary to correct such statement or omission or
to comply with law. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement (or any other registration statement relating to the Securities), the
Prospectus or any preliminary prospectus, including the documents incorporated by reference
therein, the Company will promptly notify the Representatives and will promptly amend or
supplement such Issuer Free Writing Prospectus, at its own expense, to eliminate or correct
such conflict.
(f) The Company represents that neither it nor anyone acting on its behalf has made,
and agrees that, unless it obtains the prior written consent of the Representatives, neither
it nor anyone acting on its behalf will make, any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free
writing prospectus required to be filed by the Company with the
20
Commission or retained by the Company under Rule 433; provided that the prior written
consent of the Representatives shall be deemed to have been given in respect of each free
writing prospectus (as defined in Rule 405), if any, that is attached hereto as (or
identified on) Schedule C. Any such free writing prospectus that is consented to, or is
deemed to have been consented to, by the Representatives is referred to herein as a
“Permitted Free Writing Prospectus”. The Company agrees that (i) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 of the 1933 Act Regulations applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Underwriters agree that, unless they obtain the prior
written consent of the Company and, in the case of the Underwriters other than the
Representatives, the Representatives, they will not make any offer relating to the
Securities that constitutes or would constitute a free writing prospectus required to be
filed with the Commission under Rule 433. Notwithstanding the foregoing, the Company
consents to the use by any Underwriter of a free writing prospectus that (a) is not an
Issuer Free Writing Prospectus, and (b) contains only (i) information describing the
preliminary terms of the Securities or their offering, (ii) information permitted by Rule
134 or (iii) information that describes the final terms of the Securities or their offering
and other customary information relating thereto.
(g) If immediately prior to the third anniversary (the “Renewal Deadline”) of December
8, 2008, any of the Securities remain unsold by the Underwriters, the Company will, prior to
the Renewal Deadline, file, if they have not already done so, a new shelf registration
statement relating to the Securities in a form satisfactory to the Representatives, and will
use its best efforts to cause such registration statement to be declared effective within 60
days after the Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue as
contemplated in the expired registration statement relating thereto. References herein to
the “Registration Statement” shall include such new shelf registration statement.
(h) The Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(i) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), in
connection with its review of the offering; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where it is not
now so subject. In each jurisdiction in which the Securities
21
have been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction.
(j) The Company will use any net proceeds received by it from the sale of the
Securities in the manner specified in the Registration Statement, the Prospectus and the
Disclosure Package under “Use of Proceeds”.
(k) The Company will use its best efforts to effect and maintain the listing of the
Securities on the NYSE. In addition, on or before completion of this offering, the Company
shall make all filings required under applicable securities laws and by the NYSE.
(l) The Company will not, without the prior written consent of the Representatives, for
a period beginning on and including the date hereof through and including the date which is
the earlier of (i) 60 days after the date hereof and (ii) November 8, 2010 (the “Lock-Up
Period”), (i) offer, pledge, sell, contract to sell, solicit offers to purchase, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or indirectly, including
the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act
Regulations, with respect to, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock or publicly announce
an intention to effect any such transaction, or announce the offering of any shares of
capital stock of the Company or any securities convertible into or exercisable or
exchangeable for such capital stock of the Company (whether such shares or any such
securities are now owned or hereafter acquired) or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of shares of capital stock of the Company, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of shares of any capital
stock of the Company or such other securities, in cash or otherwise; provided,
however, that the Company may issue, sell, contract to sell or otherwise dispose of
or grant options for, shares of any capital stock of the Company or securities convertible
into, or exchangeable for, shares of any capital stock of the Company: (1) pursuant to this
Agreement; (2) pursuant to any benefit plan, dividend reinvestment plan or 10b5-1 plan of
the Company in effect as of the date hereof; (3) pursuant to any warrants, stock options or
other convertible securities outstanding as of the date hereof; and (4) as consideration for
the acquisition by the Company or one of its subsidiaries from a third party of assets or of
equity interests of any other entity which entity would, after giving effect to the
acquisition of such equity interests, be a subsidiary of the Company.
22
(m) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the 1934
Act or otherwise, stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(n) The Company, during the period when a prospectus is required under the 1933 Act or
the 1934 Act to be delivered (or but for the exemption afforded by Rule 172 would be
required to be delivered) to investors in connection with sales of the Securities, will file
all documents required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(o) The Company will comply in all material respects with all applicable securities and
other laws, rules and regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
and use its best efforts to cause the Company’s directors and officers, in their capacities
as such, to comply in all material respects with such laws, rules and regulations,
including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of the date hereof
and the Closing Date (for purposes of this Section 6, “Closing Date” shall refer to the Closing
Date for the Firm Securities and any Option Closing Date, if different, for the Option Securities),
to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, or notice
objecting to its use, shall have been issued by the Commission and no proceedings for that
purpose shall have been instituted or threatened. The Prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective
amendment providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B). All material required to be filed by the
Company pursuant to Rule 433(d) shall have been filed with the Commission within the
applicable time periods presented for such filings under Rule 433. The Company shall have
paid the required Commission filing fees relating to the Securities within the time period
required by Rule 456(1)(i) of the 1933 Act Regulations without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if
applicable, shall have updated the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement
or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Company, to have furnished to the Representatives their opinion to the effect set forth
in Exhibit B attached hereto, dated the Closing Date and addressed to the
23
Representatives, in form and substance reasonably satisfactory to the Representatives.
In rendering such opinion, such counsel may rely as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, with respect to the
opinion set forth in paragraph 1 of Exhibit C, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, with respect to
the opinion set forth in paragraph 2 of Exhibit C, counsel for the Company, to have
furnished to the Representatives their opinion as to tax issues, to the effect set forth in
Exhibit C attached hereto, dated the Closing Date and addressed to the Representatives, in
form and substance reasonably satisfactory to the Representatives. In rendering such
opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special
Maryland counsel for the Company, to have furnished to the Representatives their opinion to
the effect set forth in Exhibit D attached hereto, dated the Closing Date and addressed to
the Representatives, in form and substance reasonably satisfactory to the Representatives.
In rendering such opinion, such counsel may rely as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public officials.
(e) The Representatives shall have received from Sidley Austin llp, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to this Agreement, the Registration Statement, the Prospectus
and the Disclosure Package and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct as of the date hereof and on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement,
or notice objecting to its use, has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Registration Statement, the Prospectus or the
24
Disclosure Package (exclusive of any amendment or supplement thereto), there
has been no material adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of
business.
(g) At the time of the execution of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated by
reference or deemed to be incorporated by reference in the Registration Statement, the
Prospectus or the Disclosure Package.
(h) At Closing Date, the Representatives shall have received from Ernst & Young LLP a
letter, dated the Closing Date, to the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 6(g) hereof, except that the specified date referred
therein to shall be a date not more than three New York business days prior to the Closing
Date.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is
given in the Registration Statement, the Prospectus or the Disclosure Package, there shall
not have been (i) any change or decrease specified in the letter or letters referred to in
paragraph (g) of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement, the Prospectus and the Disclosure Package.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
(k) Subsequent to the date hereof, there shall not have been any decrease in the rating
of any of the Company’s debt securities or preferred stock by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇)
or any notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the possible
change. Nor shall any such rating organization have publicly announced that it has placed
any of the Company’s debt securities or preferred stock on what is commonly termed a “watch
list” for possible downgrading.
25
(l) The Securities shall have been listed and admitted and authorized for trading
on the NYSE, and satisfactory evidence of such actions shall have been provided to the
Representatives.
(m) Prior to the Closing Date, the Company shall have furnished to the Representatives
a letter substantially in the form of Exhibit A attached hereto from each officer and
director of the Company listed on Schedule E attached hereto, addressed to the
Representatives.
(n) The FINRA has confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives, and the obligations of the
Underwriters to purchase the Option Securities may be cancelled at, or at any time prior to, the
Option Closing Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Sidley Austin llp, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, on the Closing Date.
The obligations of the Underwriters to purchase Option Securities hereunder are subject to the
delivery to you on the applicable Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Company, the due authorization, execution,
authentication and issuance of the Option Securities and other matters related to the execution,
authentication and issuance of the Option Securities.
7. Reimbursement of Underwriters’ Expenses. If (a) the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters or (b) this Agreement is terminated due to a
suspension by the Commission or the NYSE of trading in the Common Stock, the Company will reimburse
the Underwriters severally through ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated on demand for
all reasonable documented out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter, each person who controls any Underwriter
within the meaning of either the 1933 Act or the 1934 Act and
26
each of their affiliates (as
such term is defined in Rule 405 of the 1933 Act (each an “Affiliate”)) that participates in
the distribution of securities against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the 1933 Act, the
1934 Act or other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement made therein in
reliance upon and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430B Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the
Prospectus (or any amendment or supplement thereto) as described in Section 8(b) hereof.
This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the Registration
Statement, and each person who controls the Company within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or any preliminary prospectus, any Issuer Free Writing
Prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use therein. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in the first and second
sentences of the first paragraph under the caption “Commissions and Discounts” under the
heading “Underwriting” in the
Prospectus constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement, the Prospectus and the
Disclosure Package or any of the other documents referred to in the foregoing indemnity.
27
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure to so notify the indemnifying
party (i) will not relieve the indemnifying party from liability under paragraph (a) or (b)
of this Section 8 unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) of this Section 8. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party or (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. It is understood, however, that the indemnifying party shall, in
connection with any one such action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such indemnified parties, which firm shall be designated
in writing by the Representatives. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively “Losses”) to
28
which the Company and one
or more of the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total gross proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions received by the Underwriters pursuant to this Agreement. Relative
fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the 1933 Act or the 1934 Act, each
director, officer, employee and agent of an Underwriter and each Underwriter’s Affiliates
that participates in the distribution of securities shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule A attached hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount
of
29
Securities set forth in Schedule A attached hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date or the Option Closing
Date, as applicable, shall be postponed for such period, not exceeding five New York business days,
as the Representatives shall determine in order that the required changes in the Registration
Statement, the Prospectus, the Disclosure Package or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination (or, in the case of
an Option Closing Date that is subsequent to the Closing Date for the Firm Securities, the
obligations of the Underwriters to purchase the applicable Option Securities on such Option Closing
Date shall be subject to termination), in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Firm Securities (or such Option
Securities, as the case may be), if at any time prior to such time (i) trading in the Common Stock
shall have been suspended by the Commission or the NYSE or trading in securities generally on
either the NYSE or the NASDAQ Stock Market shall have been suspended or limited or minimum prices
shall have been established on either of said exchanges, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States shall have occurred; or
(iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Origination Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Origination Counsel
30
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Equity Syndicate Department
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Equity Syndicate Department
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Sidley Austin llp
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
Notices sent to the Company, shall be mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and
confirmed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Environmental Laws” shall mean any and all federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any
Governmental Authority regulating, relating to or imposing liability or standards of
conduct concerning any Hazardous Substances, public health or environmental protection,
together with any amendment or a re-authorization thereof or thereto.
“Governmental Authority” shall mean any federal, state, local or municipal governmental
body, department, agency or subdivision responsible for the due administration and/or
enforcement of any Environmental Law.
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“Hazardous Substances” shall mean any pollutant, contaminant, hazardous material,
hazardous waste, infectious medical waste, hazardous or toxic substance defined or regulated
as such in or under any Environmental Law.
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, UDR, INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Senior Executive Vice President | |||
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|
The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Head of Americas Real Estate | |||
| ▇▇▇▇▇ FARGO SECURITIES, LLC |
||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Director | |||
| For themselves and as Representatives of the other Underwriters, if any, named in Schedule A attached hereto. |
||||
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SCHEDULE A
| Number of | ||||
| Name of Underwriter | Firm Securities | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated |
8,000,000 | |||
▇▇▇▇▇ Fargo Securities, LLC |
8,000,000 | |||
Total |
16,000,000 | |||
SCHEDULE B
Issuer: |
UDR, Inc. | |
Shares offered: |
16,000,000 shares of common stock (excluding the exercise by the underwriters of their option to purchase an additional 2,400,000 shares of common stock to cover over-allotments) | |
Initial price to public (per share): |
$20.35 | |
Purchase price (per share): |
$19.536 | |
Trade date: |
September 8, 2010 | |
Settlement date: |
September 13, 2010 (T+3) |
SCHEDULE C
List of Issuer Free Writing Prospectuses
1. None
SCHEDULE D
List of Significant Subsidiaries
United Dominion Realty L.P.
SCHEDULE E
Officers and Directors Providing Lock-Up Letters
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▇▇▇▇▇ ▇. Messenger
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W. ▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
UDR, Inc.
Public Offering of Common Stock
Public Offering of Common Stock
September 8, 2010
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Securities, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several Underwriters
named on Schedule A to the Underwriting Agreement
named on Schedule A to the Underwriting Agreement
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”) between UDR, Inc., a Maryland corporation (the “Company”), and you
as representatives of the underwriter or underwriters named therein (the “Underwriters”), relating
to an underwritten public offering of Common Stock, $0.01 par value (the “Common Stock”), of the
Company.
In order to induce the Underwriters to enter into the Underwriting Agreement, the undersigned
agrees that the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇ Fargo Securities, LLC, sell, offer or contract to sell,
solicit offers to purchase, pledge or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Securities and Exchange Commission promulgated thereunder with
respect to, any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any
such transaction, for a period beginning on and
including the date of the Underwriting Agreement
through and including the date which is the earlier of (i) 60 days after the date of the
Underwriting Agreement and (ii) November 8, 2010. Notwithstanding the foregoing, the undersigned
may transfer any or all of the shares of common stock of the Company or any securities convertible
into or exchangeable or exercisable for Common Stock owned by the undersigned, either during his or
her lifetime or on death, by gift, will or intestate succession, to members of his or her immediate
family or to a trust the beneficiaries of which are exclusively the undersigned and/or a member or
members of his or her immediate family; provided, however, that in any such
transfer, it shall be a condition to such transfer that, prior to the transfer, the transferee
execute and deliver to the Representatives an agreement stating that the transferee is receiving
and holding the shares of Common Stock or other securities, as the case may be, subject to, and the
transferee agrees to be bound by, the provisions of this letter agreement, and there shall be no
further transfer of such shares of Common Stock or other securities, as the case may be, except in
accordance with this letter agreement.
Notwithstanding the foregoing provisions of this letter agreement, the undersigned will be
permitted to sell shares of Common Stock pursuant to a 10b5-1 plan in effect as of the date hereof.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), this agreement shall likewise be terminated.
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This agreement shall be governed by and construed in accordance with the laws of the State of
New York.
| Yours very truly, |
||||
| Name: | ||||
EXHIBIT B
FORM OF OPINION OF
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
COUNSEL TO THE COMPANY
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
COUNSEL TO THE COMPANY
1. The UDR Operating Partnership is validly existing in good standing under the laws of the
State of Delaware.
2. The UDR Operating Partnership has the status set forth in Schedule B hereto set forth
opposite the jurisdictions listed in Schedule B hereto.
3. The execution and delivery by the Company of the Underwriting Agreement and the
consummation by the Company of the transactions contemplated thereby, including the issuance and
sale of the Securities, will not (i) constitute a violation of, or a breach or default under, the
terms of any Applicable Contract or (ii) violate or conflict with, or result in any contravention
of, any Applicable Law or any Applicable Order. We do not express any opinion, however, as to
whether the execution, delivery or performance by the Company of the Underwriting Agreement will
constitute a violation of, or a default under, any covenant, restriction or provision with respect
to financial ratios or tests or any aspect of the financial condition or results of operations of
the Company or any of its subsidiaries.
4. No Governmental Approval, which has not been obtained or taken and is not in full force and
effect, is required to authorize, or is required for, the execution or delivery of the Underwriting
Agreement by the Company or the consummation by the Company of the transactions contemplated
thereby.
5. To our knowledge, there are no legal or governmental proceedings pending to which the
Company or the UDR Operating Partnership is a party or to which any property of the Company or the
Operating Partnership is subject that are required to be disclosed in the Prospectus pursuant to
Item 103 of Regulation S-K of the Rules and Regulations that are not so disclosed.
6. The Company and the UDR Operating Partnership are not and, solely after giving effect to
the offering and sale of the Securities and the application of the proceeds thereof as described in
the Prospectus Supplement, will not be an “investment company” as such term is defined in the
Investment Company Act of 1940.
7. (i) The Registration Statement, at the Applicable Time, and the Prospectus, as of the date
of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the Rules and Regulations (except that in
each case we do not express any view as to the financial statements, schedules and other financial
information included or incorporated by reference therein or excluded therefrom) and (ii) no facts
have come to our attention that have caused us to believe that the Registration Statement, at the
Applicable Time, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the Prospectus Supplement and as of the
date hereof contained or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that in each case we do not
express any view as to the financial statements, schedules and other financial information included
or incorporated by reference therein or excluded therefrom or the statements contained in the
exhibits to the Registration Statement). In addition, no facts have come to our attention that
have caused us to believe that the Disclosure Package, as of the Applicable Time, contained an
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading (except that we do not express any view as to the financial statements, schedules and
other financial information included or incorporated by reference therein or excluded therefrom or
the statements contained in the exhibits to the Registration Statement).
EXHIBIT C
FORM OF TAX OPINION OF
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP/▇▇▇▇▇ ▇▇▇▇ LLP,
COUNSEL TO THE COMPANY
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP/▇▇▇▇▇ ▇▇▇▇ LLP,
COUNSEL TO THE COMPANY
1. Commencing with UDR’s taxable year that ended on December 31, 2006, UDR has been organized
and operated in conformity with the requirements for qualification as a REIT under the Code, and
its actual method of operation through the date of this letter has enabled, and its proposed
method of operation will enable, it to meet the requirements for qualification and taxation as a
REIT under the Code thereafter. As noted in the Offering Documents, UDR’s qualification and
taxation as a REIT depend upon its ability to meet, through actual operating results, certain
requirements relating to the sources of its income, the nature of its assets, distribution levels
and diversity of stock ownership, and various other qualification tests imposed under the Code,
the results of which are not reviewed by us. Accordingly, no assurance can be given that the
actual results of UDR’s operation for any one taxable year will satisfy the requirements for
taxation as a REIT under the Code.
2. Although the discussion set forth in the Disclosure Package under the heading “Federal
Income Tax Considerations” and the Prospectus Supplement under the heading “Material U.S. Federal
Income Tax Considerations” does not purport to discuss all possible United States Federal income
tax consequences of the ownership and disposition of Shares of UDR, such discussion, though
general in nature, constitutes, in all material respects, a fair and accurate summary under
current law of the material United States Federal income tax consequences of the ownership and
disposition of Shares of UDR, subject to the qualifications set forth therein. The United States
Federal income tax consequences of the ownership and disposition of such Shares by a holder will
depend upon that holder’s particular situation, and we express no opinion as to the completeness
of the discussion set forth in the Disclosure Package under the heading “Federal Income Tax
Considerations” and the Prospectus Supplement under the heading “Material U.S. Federal Income Tax
Considerations” as applied to any particular holder.
EXHIBIT D
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
SPECIAL MARYLAND COUNSEL TO THE COMPANY
SPECIAL MARYLAND COUNSEL TO THE COMPANY
For purposes of this Exhibit C, references to “the Company” refer solely to UDR, Inc., a Maryland
corporation, and do not include its predecessor.
(a) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland with full corporate power to own or lease, as the
case may be, and to operate its properties and conduct its business as described in the Prospectus
as amended or supplemented.
(b) Based solely upon the Foreign Qualification Certificates for the Company listed on Schedule A
to the opinion letter, from the jurisdictions and offices indicated on Schedule A to the opinion
letter, the Company is duly qualified to transact business as a foreign corporation in the States
of Arizona, Colorado, Delaware, Florida, Georgia, North Carolina, Ohio, Oregon, South Carolina,
Tennessee and Virginia.
(c) The Securities have been duly authorized for issuance and sale to the Underwriters pursuant to
the Underwriting Agreement and, upon delivery to the Underwriters against payment therefor in
accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable; the certificates for the Securities comply in all material respects with the
Charter, the By-Laws and applicable Maryland law; and the issuance of the Securities is not subject
to preemptive rights arising under the Charter, the Bylaws or Maryland law.
(d) None of the issue and sale of the Securities, the compliance by the Company with all of the
provisions of the Underwriting Agreement, nor the consummation of any other of the transactions
herein or therein contemplated will result (i) in a violation of the Charter or Amended and
Restated Bylaws of the Company or (ii) to our knowledge, materially violate any applicable statute,
law, order, rule or regulation of any Maryland court, regulatory body, administrative agency,
governmental body, arbitrator or other authority of the State of Maryland having jurisdiction over
the Company or any of its properties.
(e) The statements set forth in the Prospectus under the caption “Description of Capital
Stock—Common Stock,” insofar as they constitute a summary of documents referred to therein or
matters of Maryland law, are correct in all material respects.
(f) The Underwriting Agreement has been duly authorized, executed and, based solely on the
Officer’s Certificate, delivered by the Company.