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Section 1: 8-K (8-K)

8-K2019-10-111745 Shea Center Drive, Suite 200Highlands RanchCO80129720283-6120falsefalsefalsefalse00000742080001018254falsefalse0000074208udr:UnitedDominionRealtyLPMember2020-05-072020-05-0700000742082020-05-072020-05-07

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): May 7, 2020

UDR, Inc.

United Dominion Realty, L.P.

(Exact name of registrant as specified in its charter)

 

 

 

 

 

Maryland (UDR, Inc.)

Delaware (United Dominion Realty, L.P.)

 

1-10524

333-156002-01

 

54-0857512

54-1776887

 

 

 

 

 

(State or other jurisdiction
of incorporation)

 

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

 

 

1745 Shea Center Drive, Suite 200,
Highlands Ranch, Colorado

 

 
80129

 

 

 

(Address of principal executive offices)

 

(Zip Code)

Registrant’s telephone number, including area code: (720283-6120

Not Applicable

Former name or former address, if changed since last report

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, par value $0.01

UDR

New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

UDR, Inc.: Emerging growth company

United Dominion Realty, L.P.: Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

UDR, Inc.: United Dominion Realty, L.P.:

Item 8.01 Other Events

Amendment to Sales Agreement for ATM Program

On May 7, 2020, UDR, Inc., a Maryland corporation (the “Company”), entered into an amendment to the ATM Equity Offering Sales Agreement, dated July 31, 2017 (the “Sales Agreement”), for the offering, from time to time, of the Company’s common stock. The purpose of the amendment to the Sales Agreement was, among other things, to revise the definitions of “Agents” and “Forward Purchasers” under the Sales Agreement, to reference the Company’s shelf registration statement on Form S-3 (File No. 333-236846) that was filed with the Securities and Exchange Commission on March 3, 2020 (the “Registration Statement”), and to make certain revisions to the form of forward confirmation attached to the Sales Agreement.

A copy of the amendment to the Sales Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K. The description of the amendment to the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the copy of the amendment to the Sales Agreement filed as an exhibit to this Current Report on Form 8-K and incorporated herein by reference.

Amendment to Distribution Agreement for MTN Program

On May 7, 2020, the Company and United Dominion Realty, L.P., a Delaware limited partnership, entered into an amendment to the Third Amended and Restated Distribution Agreement, dated September 1, 2011, as amended on July 29, 2014 and April 27, 2017 (the “Distribution Agreement”), for the offering, from time to time, of the Company’s medium term notes. The purpose of the amendment to the Distribution Agreement was, among other things, to revise the definition of “Agents” under the Distribution Agreement and to reference the Registration Statement.

A copy of the amendment to the Distribution Agreement is filed as Exhibit 1.2 to this Current Report on Form 8-K. The description of the amendment to the Distribution Agreement does not purport to be complete and is qualified in its entirety by reference to the copy of the amendment to the Distribution Agreement filed as an exhibit to this Current Report on Form 8-K and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

Exhibit No.

Description

1.1

Amendment No. 1, dated May 7, 2020, to the ATM Sales Agreement.

1.2

Amendment No. 3, dated May 7, 2020, to the Third Amended and Restated Distribution Agreement, dated September 1, 2011 and as amended July 29, 2014 and April 27, 2017.

5.1

Opinion of Morrison & Foerster LLP regarding the legality of shares.

23.1

Consent of Morrison & Foerster LLP (included in Exhibit 5.1).

104

Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline XBRL.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

 

 

 

 

 

 

 

UDR, Inc.

  

 

 

 

 

May 7, 2020

 

By:

 

 /s/ Joseph D. Fisher

 

 

 

 

Joseph D. Fisher

 

 

 

 

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

 

 

 

 

 

 

 

 

 

 

 

 

 

United Dominion Realty, L.P.

 

By:

 

UDR, Inc., its general partner

/s/ Joseph D. Fisher

 

 

 

 

Joseph D. Fisher

 

 

 

 

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

(Back To Top)

Section 2: EX-1.1 (EX-1.1)

8-K_ATM_and_MTN_Ex_1_1

Exhibit 1.1

UDR, INC.

Common Stock
($0.01 par value)

AMENDMENT NO. 1 TO THE ATM SALES AGREEMENT

May 7, 2020

 

 

 

 

 

 

 

 

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

 

J.P. Morgan Securities LLC

383 Madison Avenue, 5th Floor

New York, New York 10179

 

BTIG, LLC

65 East 55th Street

New York, New York 10022

 

Morgan Stanley & Co. LLC

1585 Broadway

New York, New York 10036

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

 

Wells Fargo Securities, LLC

500 West 33rd Street

New York, New York 10001

Jefferies LLC

520 Madison Avenue

New York, New York 10022

 

 

 

Ladies and Gentlemen:

Reference is made to the ATM Sales Agreement, dated July 31, 2017 (the “Agreement”), by and among UDR, Inc. (the “Company”) and United Dominion Realty, L.P. (the “Operating Partnership”) and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, BofA Securities, Inc. (as successor in interest to Merrill Lynch, Pierce, Fenner & Smith Incorporated) and Morgan Stanley & Co. LLC, acting as sales agents, forward sellers and/or principals, and Bank of America, N.A., Citibank, N.A., Credit Suisse Securities (USA) LLC, JPMorgan Chase Bank, National Association and Morgan Stanley & Co. LLC, acting as forward purchasers (collectively,  the “Parties”).  On March 3, 2020, the Company and the Operating Partnership filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”), on Form S-3 (File No. 333-236846) (the “Registration Statement”), in respect of certain of the Company’s and the Operating Partnership’s securities, in anticipation of the expiration of the Company’s automatic shelf registration statement on Form S-3 (File No. 333-217491) (the “Expiring Registration Statement”).  The Parties wish to amend the Agreement to reference the Registration Statement instead of the Expiring Registration Statement, to reflect the termination of the Agreement with respect to Credit Suisse Securities (USA) LLC, and to reflect the addition of the Agents and Forward Purchasers,  representations and warranties, and sections noted below (this “Amendment”).  The Parties therefore hereby agree as follows:

ACTIVE 254782372

 

May 7, 2020

Page 2

 

1. Agents.  All references to “the Agents” in the Agreement or in any other agreement, instrument or other document executed in connection with or under such Agreement or delivered pursuant thereto shall hereafter, for all purposes unless the context requires otherwise, refer exclusively to BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, and Wells Fargo Securities, LLC.

 

2. Forward Purchasers.  All references to “the Forward Purchasers” in the Agreement or in any other document, instrument or other document executed in connection or under such Agreement or delivered pursuant thereto shall hereafter, for all purposes unless the context requires otherwise, refer exclusively to Bank of America, N.A., Citibank, N.A., Jefferies LLC, JPMorgan Chase Bank, National Association, Morgan Stanley & Co. LLC and Wells Fargo Bank, National Association.

3. Commission File Number.  Section 1(a) of the Agreement is hereby amended so that the reference to the Commission file number of the automatic shelf registration statement on Form S-3 filed by the Company with the Commission shall be file number 333-236846.

 

4. Effective Date.  Section 1(a) of the Agreement is hereby amended to reflect that the effective date of the Registration Statement is May 7, 2020.

 

5. REIT Status.Section 1(ll) of the Agreement is hereby amended so that the reference to “December 31, 2012” shall be “December 31, 2014,” the reference to “December 31, 2016” shall be “December 31, 2019” and the reference to “December 31, 2017” shall be “December 31, 2020.” 

 

6. Cybersecurity.  A new Section 1(yy) to the Agreement is hereby created, which shall read as follows:  

 

(xxxi)  Cybersecurity.  Except as would not be expected to have a Material Adverse Effect, (i) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”); (ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; (iii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,  internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification; and (iv) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.

 

7. Sale and Delivery of Shares.  Section 2(h) of the Agreement is hereby amended to reflect that the standard settlement cycle for securities transactions effected through a broker dealer as

 

 

May 7, 2020

Page 3

 

set forth in Rule 15c6-1(a) under the 1934 Act is, as of the date hereof, the second business day that is also a Trading Day following the trade date on which such sales are made.

 

8. Payment of Expenses.  Section 5(b) of the Agreement is hereby amended so that the reference to that certain prior sales agreement, dated as of April 27, 2017, references this Amendment.

 

9. Termination

 

a.

Section 10(b) of the Agreement is hereby amended so that the reference to each Agent shall refer to each Agent and Forward Purchaser.

 

b.

Section 10(d) of the Agreement is hereby amended so that the reference to the Agents or the Company shall refer to the Agents, the Forward Purchasers or the Company.

 

10. Notices.  Section 11 is hereby deleted in its entirety and replaced with the following:

 

All statements, requests, notices and agreements hereunder shall be in writing, and if to the Agents or the Forward Purchasers shall be delivered or sent by mail, telex or facsimile transmission to:

BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Fax No.:  (646) 855-3073

Attention: Syndicate Department,

With a copy to:  ECM Legal
Fax.  No.:  (212) 230-8730,

BTIG, LLC

65 East 55th Street

New York, New York 10022

Attention: ATM Trading Desk (Email: [email protected]),

 

Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Fax No.:  (646) 291-1469

Attention: General Counsel,

Jefferies LLC in its capacity as sales agent:
520 Madison Avenue
New York, New York 10022
Attention:  General Counsel,

 

 

May 7, 2020

Page 4

 

 

J.P. Morgan Securities LLC
383 Madison Avenue,
New York, New York 10179

Attention:Special Equity Desk
Fax No.: (212) 622-8358,

Morgan Stanley & Co. LLC in its capacity as sales agent:
1585 Broadway
New York, New York 10036
Fax No.:  (212) 404-9828

Attention:Equity Syndicate Desk with a copy to the Legal Department,

Wells Fargo Securities, LLC
500 West 33rd Street
New York, New York 10001
Attention: Equity Syndicate Department
(Fax No.: (212) 214-5918,

and

Bank of America, N.A.

c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Attention: Rohan Handa (Email: [email protected]), 

Citibank, N.A.

390 Greenwich Street, 2nd Floor

New York, NY 10013

Attention: Adam Muchnick and Joseph Stoots

Telephone: (212) 723-7452

Email: [email protected] and [email protected],

 

With a copy to:

Citigroup Global Markets Inc.

388 Greenwich Street, 17th Floor

New York, New York 10013

Attention: Adrien Gotti

Telephone: (212) 816-9934

E-mail: [email protected],  

 

Jefferies LLC in its capacity as forward purchaser:
520 Madison Avenue
New York, New York 10022
Attention:  Colyer Curtis and Tim O’Connor

Tel: +1 212-708-2734

 

 

May 7, 2020

Page 5

 

Email: [email protected] and [email protected] 

With copies to: Sonia Han Levovitz and Dawn Pieper, [email protected] and [email protected],

 

JPMorgan Chase Bank, National Association

New York Branch
383 Madison Avenue
New York, New York 10179
Attention: EDG Marketing Support

E-mail: [email protected] and [email protected],

With a copy to:
Stephanie Little (Email:
[email protected]),

 

Morgan Stanley & Co. LLC in its capacity as forward purchaser:

1585 Broadway
New York, New York 10036
Fax No.:  (212) 404-9828,

Wells Fargo Bank, National Association
500 West 33rd Street

New York, New York 10001

Email: [email protected],  

and if to the Company to:

UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Fax No.:  (720) 283-2453

Attention:Warren L. Troupe

David G. Thatcher

With a copy to:
Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW
Suite 6000
Washington, D.C. 20006
Fax No.:  (202) 887-0763

Attention:David M. Lynn, Esq.

Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

11. Recognition of U.S. Special Resolution Regimes. A new Section 21 to the Agreement is hereby created, which shall read as follows:

 

 

 

May 7, 2020

Page 6

 

(a) In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

(b) In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

For purposes of this Section 21, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

12. Governing Law; Forum. This Amendment and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State.  Any suit, action or proceeding brought by the Company against any of the agents referenced above in connection with or arising under this Amendment shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York.

13. Counterparts.  This Agreement shall be valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of the party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature.  Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.

14. Agreement Remains in Effect.  Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect.  As amended hereby, the Agreement is ratified and confirmed in all respects.

 

 

May 7, 2020

Page 7

 

 

15. Form of Confirmation.  Annex III to the Agreement is hereby deleted in its entirety and replaced with Annex III attached hereto.

 

Terms used herein but not otherwise defined are used herein as defined in the Agreement.

 

 

 

 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof; whereupon this instrument, along with all counterparts, will become a binding agreement among the Agents, the Forward Purchasers and the Company in accordance with its terms.

Very truly yours,

UDR, Inc.

By:/s/Joseph D. Fisher
Name: Joseph D. Fisher
Title:  Senior Vice President and Chief Financial Officer

[UDR, Inc. ATM Sales Agreement Amendment No. 1 Signature Page]

 

The foregoing Amendment No. 1 to

the Agreement is hereby confirmed

and accepted as of the date first

written above.

 

 

 

 

 

BOFA SECURITIES, INC.

 

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Hicham Hamdouch

 

 

Name: Hicham Hamdouch

 

 

Title: Managing Director

 

 

 

 

 

 

BTIG, LLC

 

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Joseph Passaro

 

 

Name: Joseph Passaro

 

 

Title: Managing Director

 

 

 

 

 

 

Citigroup Global Markets Inc.

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Kase Lawal

 

 

Name: Kase Lawal

 

 

Title: Vice President

 


 

 

 

jefferies LLC

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Donald Lynaugh

 

 

Name: Donald Lynaugh

 

 

Title: Managing Director, ECM

 

 

[UDR, Inc. ATM Sales Agreement Amendment No. 1 Signature Page]

 

 

 

 

J.P. Morgan Securities LLC

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Stephanie Little

 

 

Name: Stephanie Little

 

 

Title: Executive Director

 

 

 

 

 

 

Morgan Stanley & Co. LLC

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Adam Coleman

 

 

Name: Adam Coleman

 

 

Title: Vice President

 

 

 

 

 

 

Wells Fargo securities, LLC

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Elizabeth Alvarez

 

 

Name: Elizabeth Alvarez

 

 

Title: Managing Director

 

 

 

 

 

Bank of America, N.A.

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Jake Mendelsohn

 

 

Name: Jake Mendelsohn

 

 

Title: Managing Director

 

 

 


 

 

 

Citibank, N.A.

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ James Heathcote

 

 

Name: James Heathcote

 

 

Title: Authorized Signatory

 

 

[UDR, Inc. ATM Sales Agreement Amendment No. 1 Signature Page]

 


 

 

 

JPMorgan Chase bank, national association

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Stephanie Little

 

 

Name: Stephanie Little

 

 

Title: Executive Director

 

 

 


 

 

 

wells fargo bank, national association

 

 

 

 

in its capacity as sales agent

 

 

 

 

By:

/s/ Cathleen Burke

 

 

Name: Cathleen Burke

 

 

Title: Managing Director

 

 

[UDR, Inc. ATM Sales Agreement Amendment No. 1 Signature Page]

 

Annex III Form of Confirmation

 

 

 

 

Date:  [], 20[]

To:UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Fax No.:  (720) 283-2453

Attention:Warren L. Troupe

David G. Thatcher

 

From:[DEALER NAME AND NOTICE INFORMATION]

 

Ladies and Gentlemen:

The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into between [DEALER NAME] ([“[DEALER NAME]” or] “Dealer”) and UDR, Inc. (the “Counterparty”) on the Trade Date specified below (the “Transaction”).  This letter agreement constitutes a “Confirmation” as referred to in the ISDA 2002 Master Agreement specified below.

The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation.  In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

1.This Confirmation and the Pricing Supplement (as defined below) delivered hereunder evidence a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates.  This Confirmation, together with any other Confirmations for registered forward transactions entered into between Dealer and Counterparty (each, an “Additional Confirmation”), shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but with the elections set forth in this Confirmation).  In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates.  The parties hereby agree that, other than the Transaction to which this Confirmation relates and the Transactions to which the Additional Confirmations, if any, relate (each, an “Additional Transaction”), no Transaction shall be governed by the Agreement.  For purposes of the Equity Definitions, this Transaction is a Share Forward Transaction.

2.The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:

2

 

 

 

Trade Date:

[], 20[]

 

 

Effective Date:

The first day occurring on or after the Trade Date on which Shares are sold through [DEALER NAME][[AGENT NAME] (the “Agent”)], acting as forward seller for Dealer [in such capacity, the (“Agent”) for [DEALER NAME]], as forward purchaser, pursuant to the ATM Sales Agreement dated July 31, 2017, as may be amended from time to time, among Counterparty, Dealer, the Agent and other parties thereto (the “Sales Agreement”) have settled.

 

 

Seller:

Counterparty

 

 

Buyer:

[Dealer][[DEALER NAME], as Dealer]

 

 

Shares:

The common stock of Counterparty, par value USD 0.01 per share (Ticker Symbol: “UDR”)

 

 

Number of Shares:

A fixed number as specified in the Pricing Supplement, to be the aggregate number of Shares sold through the Agent acting as forward seller for Dealer pursuant to the Sales Agreement during the period from and including the Trade Date through and including the Hedge Completion Date to establish Dealer’s commercially reasonable hedge position in a commercially reasonable manner; provided, however, that the Number of Shares is subject to reduction in connection with a Stock Borrow Event as described in Paragraph7(f)(i) below; and provided, further, that on each Settlement Date, the Number of Shares shall be reduced by the number of Settlement Shares settled on such date.

 

 

Hedge Completion Date:

The earliest of (i) the date specified in writing as the Hedge Completion Date by Counterparty, (ii) any Settlement Date and (iii) [DATE].  Promptly after the Hedge Completion Date, Dealer will furnish Counterparty with a pricing supplement (the “Pricing Supplement”) substantially in the form of Annex A hereto specifying the Number of Shares as of the Hedge Completion Date (the “Initial Number of Shares”), the Initial Forward Price and the Final Date, all determined in accordance with the terms hereof.

3

 

 

 

 

Initial Forward Price:

[]% of the volume weighted average price at which the Shares are sold through the Agent acting as forward seller for Dealer pursuant to the Sales Agreement in a commercially reasonable manner that reflects the then prevailing market price during the period from and including the Trade Date through and including the Hedge Completion Date (adjusted as the Calculation Agent determines appropriate to (i) reflect on each day during such period the sum of 1 and the Daily Rate for such day multiplied by the then-Initial Forward Price as of such day and (ii) reduce the then-Initial Forward Price by the relevant Forward Price Reduction Amount on each Forward Price Reduction Date occurring on or before the Hedge Completion Date). For the avoidance of doubt, each such sale by the Agent in accordance with the Sales Agreement shall be deemed to be made in a commercially reasonable manner that reflects the then prevailing market price.

 

 

Forward Price:

(a)

On the Hedge Completion Date, the Initial Forward Price; and

 

 

 

(b)

on each calendar day thereafter, (i) the Forward Price as of the immediately preceding calendar day multiplied by (ii) the sum of 1 and the Daily Rate for such day; provided that, on each Forward Price Reduction Date, the Forward Price in effect on such date shall be the Forward Price otherwise in effect on such date, minus the Forward Price Reduction Amount for such Forward Price Reduction Date.

 

 

Daily Rate:

For any day, a rate (which may be positive or negative) equal to (i) (a) [USD-Federal Funds Rate] for such day minus (b) the Spread divided by (ii) 360.

 

 

USD-Federal Funds Rate:

For any day, the rate set forth for such day opposite the caption “Federal funds”, as such rate is displayed on Bloomberg Screen “OBFR01<Index><GO>”, or any successor page; provided that, if no rate appears for a particular day on such page, the rate for the immediately preceding day for which a rate does so appear shall be used for such day.

 

 

Spread:

[]%.

4

 

 

Prepayment:

Not Applicable

 

 

Variable Obligation:

Not Applicable

 

 

Forward Price Reduction Dates:

As set forth on Schedule I

 

 

Forward Price Reduction Amounts:

For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I.

 

 

Exchange:

The New York Stock Exchange

 

 

Related Exchange(s):

All Exchanges

 

 

Clearance System:

The Depository Trust Company

 

 

Market Disruption Event:

Section 6.3(a) of the Equity Definitions is hereby amended by replacing the first sentence in its entirety with the following: “‘Market Disruption Event’ means in respect of a Share or an Index, the occurrence or existence of (i) a Trading Disruption, (ii) an Exchange Disruption, (iii) an Early Closure or (iv) a Regulatory Disruption, in each case that the Calculation Agent determines, in its commercially reasonable judgment, is material”.

 

 

Early Closure:

Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.

 

 

Regulatory Disruption:

Any event that Dealer, based on the advice of counsel, determines makes it necessary or appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures that generally apply to transactions of a nature and kind similar to the Transaction for Dealer to refrain from or decrease any market activity in connection with the Transaction.

 

 

Settlement:

 

 

 

Settlement Currency:

USD (all amounts shall be converted to the Settlement Currency in good faith and in a commercially reasonable manner by the Calculation Agent)

 

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Settlement Date:

Any Scheduled Trading Day following the Effective Date and up to and including the Final Date that is either:

 

 

 

(a)

designated by Counterparty as a “Settlement Date” by a written notice (a “Settlement Notice”) that satisfies the Settlement Notice Requirements and is delivered to Dealer no less than (i) two Scheduled Trading Days prior to such Settlement Date, which may be the Final Date, if Physical Settlement applies, and (ii) 60 Scheduled Trading Days prior to such Settlement Date, which may be the Final Date, if Cash Settlement or Net Share Settlement applies; provided that, if Dealer shall fully unwind its commercially reasonable hedge in a commercially reasonable manner with respect to the portion of the Number of Shares to be settled during an Unwind Period by a date that is more than two Scheduled Trading Days prior to a Settlement Date specified above, Dealer may, by written notice to Counterparty, no fewer than two Scheduled Trading Days prior thereto, specify any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date; or

 

 

 

(b)

designated by Dealer as a Settlement Date pursuant to the “Termination Settlement” provisions of Paragraph 7(g) below;

 

 

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provided that the Final Date will be a Settlement Date if on such date the Number of Shares for which a Settlement Date has not already been designated is greater than zero, and provided further that, following the occurrence of at least three consecutive Disrupted Days during an Unwind Period and while such Disrupted Days are continuing, Dealer may designate any subsequent Scheduled Trading Day as the Settlement Date with respect to the portion of the Settlement Shares, if any, for which Dealer has determined an Unwind Purchase Price during such Unwind Period, it being understood that the Unwind Period with respect to the remainder of such Settlement Shares shall recommence on the next succeeding Exchange Business Day that is not a Disrupted Day in whole.

 

 

 

Final Date:

[DATE] (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading Day).

 

 

Settlement Shares:

(a)  

With respect to any Settlement Date other than the Final Date, the number of Shares designated as such by Counterparty in the relevant Settlement Notice or designated by Dealer pursuant to the “Termination Settlement” provisions of Paragraph 7(g) below, as applicable; provided that the Settlement Shares so designated shall, in the case of a designation by Counterparty, (i) not exceed the Number of Shares at that time and (ii) be at least equal to the lesser of 100,000 and the Number of Shares at that time, in each case with the Number of Shares determined taking into account pending Settlement Shares; and

 

 

 

(b) 

with respect to the Settlement Date on the Final Date, a number of Shares equal to the Number of Shares at that time; in each case with the Number of Shares determined taking into account pending Settlement Shares.

 

 

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Settlement Method Election:

Physical Settlement, Cash Settlement, or Net Share Settlement, at the election of Counterparty as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements; provided that Physical Settlement shall apply (i) if no Settlement Method is validly selected, (ii) with respect to any Settlement Shares in respect of which Dealer is unable to unwind its hedge by the end of the Unwind Period (taking into account any Additional Transactions with overlapping “Unwind Periods” (as defined in the applicable Additional Confirmation)) (A) in a manner that, in the reasonable discretion of Dealer, based on advice of counsel, is consistent with the requirements for qualifying for the safe harbor provided by Rule 10b-18 (“Rule 10b-18”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or (B)  in its commercially reasonable judgment, due to the occurrence of Disrupted Days or to the lack of sufficient liquidity in the Shares on any Exchange Business Day during the Unwind Period, (iii) to any Termination Settlement Date (as defined under “Termination Settlement” in Paragraph 7(g) below) and (iv) if the Final Date is a Settlement Date other than as the result of a valid Settlement Notice, in respect of such Settlement Date; provided further that, if Physical Settlement applies under clause (ii) immediately above, Dealer shall provide written notice to Counterparty at least two Scheduled Trading Days prior to the applicable Settlement Date.

 

 

 

Settlement Notice Requirements:

Notwithstanding any other provision hereof, a Settlement Notice delivered by Counterparty that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement unless Counterparty delivers to Dealer with such Settlement Notice a representation, dated as of the date of such Settlement Notice and signed by Counterparty, containing the provisions set forth in clause (i) under the heading “Additional Representations and Agreements of Counterparty” in Paragraph 7(e) below.

 

 

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Physical Settlement:

If Physical Settlement is applicable, then Counterparty shall deliver to Dealer through the Clearance System a number of Shares equal to the Settlement Shares for such Settlement Date, and Dealer shall pay to Counterparty, by wire transfer of immediately available funds to an account designated by Counterparty, an amount equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis.  If, on any Settlement Date, the Shares to be delivered by Counterparty to Dealer hereunder are not so delivered (the “Deferred Shares”), and a Forward Price Reduction Date occurs during the period from, and including, such Settlement Date to, but excluding, the date such Shares are actually delivered to Dealer, then the portion of the Physical Settlement Amount payable by Dealer to Counterparty in respect of the Deferred Shares shall be reduced by an amount equal to the Forward Price Reduction Amount for such Forward Price Reduction Date, multiplied by the number of Deferred Shares.

 

 

 

Physical Settlement Amount:

For any Settlement Date for which Physical Settlement is applicable, an amount in cash equal to the product of (a) the Forward Price in effect on the relevant Settlement Date multiplied by (b) the Settlement Shares for such Settlement Date.

 

 

Cash Settlement:

On any Settlement Date in respect of which Cash Settlement applies, if the Cash Settlement Amount is a positive number, Dealer will pay the Cash Settlement Amount to Counterparty.  If the Cash Settlement Amount is a negative number, Counterparty will pay the absolute value of the Cash Settlement Amount to Dealer.  Such amounts shall be paid on such Settlement Date by wire transfer of immediately available funds.

 

 

Cash Settlement Amount:

An amount determined by the Calculation Agent equal to:

 

 

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(a) 

(i)(A) the weighted average (weighted on the same basis as clause (B)) of the Forward Prices on each day during the applicable Unwind Period (calculated assuming no reduction to the Forward Price for any Forward Price Reduction Date that occurs during such Unwind Period, which is accounted for in clause (b) below), minus a commercially reasonable commission which shall not exceed USD [●], minus (B) the weighted average price (the “Unwind Purchase Price”) at which Dealer purchases Shares during the Unwind Period to unwind its commercially reasonable hedge with respect to the portion of the Number of Shares to be settled during the Unwind Period in a commercially reasonable manner that reflects the then prevailing market price, as determined by Dealer in its reasonable discretion (including, for the avoidance of doubt, purchases on any Disrupted Day in part), taking into account Shares anticipated to be delivered or received if Net Share Settlement applies, and the restrictions of Rule 10b-18 under the Exchange Act agreed to hereunder, multiplied by (ii) the Settlement Shares for the relevant Settlement Date;  minus

 

 

 

 

(b) 

the product of (i) the Forward Price Reduction Amount for any Forward Price Reduction Date that occurs during such Unwind Period, and (ii) the number of Settlement Shares for such Settlement Date with respect to which Dealer has not unwound its commercially reasonable hedge in a commercially reasonable manner, including the settlement of such unwinds, as of such Forward Price Reduction Date.

 

 

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Net Share Settlement:

On any Settlement Date in respect of which Net Share Settlement applies, if the Cash Settlement Amount is a (i) positive number, Dealer shall deliver a number of Shares to Counterparty equal to the Net Share Settlement Shares, or (ii) negative number, Counterparty shall deliver a number of Shares to Dealer equal to the Net Share Settlement Shares; provided that, if Dealer determines in its reasonable judgment that it would be required to deliver Net Share Settlement Shares to Counterparty, Dealer may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date.

 

 

Net Share Settlement Shares:

With respect to a Settlement Date, the absolute value of the Cash Settlement Amount divided by the Unwind Purchase Price, with the number of Shares rounded up in the event such calculation results in a fractional number.

 

 

Unwind Period:

The period from and including the first Exchange Business Day following the date Counterparty validly elects Cash Settlement or Net Share Settlement in respect of a Settlement Date through the second Scheduled Trading Day preceding such Settlement Date, subject to “Termination Settlement” as described in Paragraph 7(g) below.

 

 

 

Failure to Deliver:

Applicable if Dealer is required to deliver Shares hereunder; otherwise, Not Applicable.

 

 

Share Cap:

Notwithstanding any other provision of this Confirmation, in no event will Counterparty be required to deliver to Dealer on any Settlement Date, whether pursuant to Physical Settlement, Net Share Settlement or any Private Placement Settlement, a number of Shares in excess of (i) two times the Initial Number of Shares, subject to adjustment from time to time in accordance with the provisions of this Confirmation or the Equity Definitions minus (ii) the aggregate number of Shares delivered by Counterparty to Dealer hereunder prior to such Settlement Date.

 

 

Adjustments:

 

 

 

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Method of Adjustment:

Calculation Agent Adjustment.  Section 11.2(e) of the Equity Definitions is hereby amended by deleting clause (iii) thereof. For the avoidance of doubt, the declaration or payment of a cash dividend will not constitute a Potential Adjustment Event.

 

 

Additional Adjustment:

If, in Dealer’s commercially reasonable judgment, the stock loan fee to Dealer (or an affiliate of Dealer), excluding the federal funds or other interest rate component payable by the relevant stock lender to Dealer or such affiliate, over any one month period, of borrowing a number of Shares equal to the Number of Shares to hedge in a commercially reasonable manner its exposure to this Transaction exceeds a weighted average rate equal to [] basis points per annum, the Calculation Agent shall reduce the Forward Price in order to compensate Dealer for the amount by which such cost exceeded a weighted average rate equal to [] basis points per annum during such period. The Calculation Agent shall notify Counterparty prior to making any such adjustment to the Forward Price.

 

 

Extraordinary Events:

 

 

 

Extraordinary Events:

In lieu of the applicable provisions contained in Article 12 of the Equity Definitions, the consequences of any Extraordinary Event (including, for the avoidance of doubt, any Merger Event, Tender Offer, Nationalization, Insolvency, Delisting, or Change In Law) shall be as specified below under the headings “Acceleration Events” and “Termination Settlement” in Paragraphs 7(f) and 7(g), respectively. Notwithstanding anything to the contrary herein or in the Equity Definitions, no Additional Disruption Event will be applicable except to the extent expressly referenced in Paragraph 7(f)(iv) below.

 

 

 

Non-Reliance:

Applicable

 

 

Agreements and Acknowledgments

 

Regarding Hedging Activities:

Applicable

 

 

Additional Acknowledgments:

Applicable

 

 

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Transfer:

Notwithstanding anything to the contrary herein or in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under this Transaction, in whole or in part, to any affiliate of Dealer without the consent of Counterparty; provided that either (A) the long-term, unsecured and unsubordinated credit rating (“Credit Rating”) of the transferee or assignee is equal to or greater than the Credit Rating of Dealer, as specified by S&P Global Ratings and Moody’s Investors Service, Inc. (or their respective successors, the “Ratings Agencies”), at the time of such assignment, transfer or set over, provided, however that if such transferee or assignee is only rated by one of the Ratings Agencies, then such Credit Rating is equal to or greater than the Credit Rating of Dealer, or (B) such transferee’s or assignee’s obligations hereunder will be fully and unconditionally guaranteed by Dealer or Dealer’s ultimate parent or parent entity in a form reasonably acceptable to Counterparty.

 

 

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3.       Calculation Agent:

Dealer, whose judgments, determinations and calculations shall be made in good faith and in a commercially reasonable manner; and, as may be applicable, with reference to Dealer’s hedge position, assuming Dealer maintains a commercially reasonable hedge position; provided that, following the occurrence and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to be made by the Calculation Agent hereunder or to perform any obligation of the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early Termination Date with respect to such Event of Default, as the Calculation Agent.  Following any determination or calculation by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly (but in any event within four (4) Scheduled Trading Days) provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary or confidential models or other proprietary or confidential information used by it for such determination or calculation.

 

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4.Account Details:

 

 

 

(a)    Account for delivery of Shares

 

to Dealer:

To be furnished

 

 

(b)    Account for delivery of Shares

 

to Counterparty:

To be furnished

 

 

(c)Account for payments to

 

Counterparty:

To be advised under separate cover or telephone confirmed prior to each Settlement Date

 

 

(d)    Account for payments to Dealer:

To be advised under separate cover or telephone confirmed prior to each Settlement Date

 

5.Offices:

The Office of Counterparty for the Transaction is:  Inapplicable, Counterparty is not a Multibranch Party

The Office of Dealer for the Transaction is:  [New York] []

6.Notices:  For purposes of this Confirmation:

(a)Address for notices or communications to Counterparty:

UDR, Inc.
1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Fax No.:  (720) 283-2453

Attention: Warren L. Troupe

      David G. Thatcher

 

(b)Address for notices or communications to Dealer:

[INSERT DEALER NAME AND NOTICE INFORMATION] 

7.Other Provisions:

(a)Conditions to Effectiveness.  This Transaction shall be effective if and only if Shares are sold by the Agent acting as forward seller for Dealer on or after the Trade Date and on or before the Hedge Completion Date pursuant to the Sales Agreement.  If the Sales Agreement is terminated prior to any such sale of Shares thereunder, the parties shall have no further obligations in connection with this Transaction, other than in respect of breaches of representations or covenants on or prior to such date.

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(b)Sales Agreement Representations, Warranties and Covenants.  On the Trade Date and on each date on which Dealer or its affiliates makes a sale pursuant to a prospectus in connection with a hedge of this Transaction, Counterparty repeats and reaffirms as of such date all of the representations and warranties contained in the Sales Agreement.  Counterparty hereby agrees to comply with its covenants contained in the Sales Agreement as if such covenants were made in favor of Dealer.

(c)Interpretive Letter.  Counterparty agrees and acknowledges that this Transaction is being entered into in accordance with the October 9, 2003 interpretive letter from the staff of the Securities and Exchange Commission to Goldman, Sachs & Co. (the “Interpretive Letter”) and agrees to take all actions, and to omit to take any actions, reasonably requested by Dealer for this Transaction to comply with the Interpretive Letter.  Without limiting the foregoing, Counterparty agrees that neither it nor any “affiliated purchaser” (as defined in Regulation M (“Regulation M”) promulgated under the Exchange Act) will, directly or indirectly, bid for, purchase or attempt to induce any person to bid for or purchase, the Shares or securities that are convertible into, or exchangeable or exercisable for, Shares during any “restricted period” as such term is defined in Regulation M. In addition, Counterparty represents that it is eligible to conduct a primary offering of Shares on Form S-3, the offering contemplated by the Sales Agreement complies with Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), and the Shares are “actively traded” as defined in Rule 101(c)(1) of Regulation M.

(d)Agreements and Acknowledgments Regarding Shares.

(i)Counterparty agrees and acknowledges that, in respect of any Shares delivered to Dealer hereunder, such Shares shall be newly issued (unless mutually agreed otherwise by the parties) and, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance and not subject to any preemptive or similar rights and shall, upon such issuance, be accepted for listing or quotation on the Exchange.

(ii)Counterparty agrees and acknowledges that Dealer (or an affiliate of Dealer) will hedge its exposure to this Transaction by selling Shares borrowed from third party securities lenders or other Shares pursuant to a registration statement, and that, pursuant to the terms of the Interpretive Letter, the Shares (up to the Initial Number of Shares) delivered, pledged or loaned by Counterparty to Dealer (or an affiliate of Dealer) in connection with this Transaction may be used by Dealer (or an affiliate of Dealer) to return to securities lenders without further registration or other restrictions under the Securities Act, in the hands of those securities lenders, irrespective of whether such securities loan is effected by Dealer or an affiliate of Dealer.  Accordingly, subject to Paragraph 7(h) below, Counterparty agrees that the Shares that it delivers, pledges or loans to Dealer (or an affiliate of Dealer) on or prior to the final Settlement Date will not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System.

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(iii)Counterparty agrees and acknowledges that it has reserved and will keep available at all times, free from preemptive or similar rights and free from any lien, charge, claim or other encumbrance, authorized but unissued Shares at least equal to the Share Cap, solely for the purpose of settlement under this Transaction.

(iv)Unless the provisions set forth below under “Private Placement Procedures” are applicable, Dealer agrees to use any Shares delivered by Counterparty hereunder on any Settlement Date to return to securities lenders to close out open securities loans created by Dealer or an affiliate of Dealer in the course of Dealer’s or such affiliate’s hedging activities related to Dealer’s exposure under this Transaction.

(v)In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of this Transaction, Dealer shall use its good faith efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases and any analogous purchases under any Additional Transaction.

(e)Additional Representations and Agreements of Counterparty. Counterparty represents, warrants and agrees as follows:

(i)Counterparty represents to Dealer on the Trade Date and on any date that Counterparty notifies Dealer that Cash Settlement or Net Share Settlement applies to this Transaction, that (A) Counterparty is not aware of any material nonpublic information regarding Counterparty or the Shares, (B) each of its filings under the Securities Act, the Exchange Act or other applicable securities laws that are required to be filed have been filed and that, as of the date of this representation, when considered as a whole (with the more recent such filings deemed to amend inconsistent statements contained in any earlier such filings), there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and (C) Counterparty is not entering into this Confirmation nor making any election hereunder to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act. In addition to any other requirement set forth herein, Counterparty agrees not to designate, or to appropriately rescind or modify a prior designation of, any Settlement Date if it is notified by Dealer that, in the reasonable determination of Dealer, based on advice of counsel, such settlement or Dealer’s related market activity in respect of such date would result in a violation of any applicable federal or state law or regulation, including the U.S. federal securities laws.

(ii)It is the intent of Dealer and Counterparty that following any election of Cash Settlement or Net Share Settlement by Counterparty, the purchase of Shares by Dealer during any Unwind Period shall comply with the requirements of Rule 10b5-l(c)(l)(i)(B) of the Exchange Act and that this Confirmation shall be interpreted to

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comply with the requirements of Rule 10b5‑l(c). Counterparty acknowledges that (i) during any Unwind Period Counterparty shall not have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases of Shares by Dealer (or its agent or affiliate) in connection with this Confirmation and (ii) Counterparty is entering into the Agreement and this Confirmation in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b‑5 promulgated under the Exchange Act.

(iii)Counterparty shall, at least one day prior to the first day of any Unwind Period, notify Dealer of the total number of Shares purchased in Rule 10b-18 purchases of blocks pursuant to the once-a-week block exception contained in Rule 10b-18(b)(4) by or for Counterparty or any of its affiliated purchasers during each of the four calendar weeks preceding the first day of the Unwind Period and during the calendar week in which the first day of the Unwind Period occurs (“Rule 10b-18 purchase”, “blocks” and “affiliated purchaser” each being used as defined in Rule 10b-18).

(iv)During any Unwind Period, Counterparty shall (i) notify Dealer prior to the opening of trading in the Shares on any day on which Counterparty makes, or reasonably expects in advance of the opening to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any merger, acquisition, or similar transaction involving a recapitalization relating to Counterparty (other than any such transaction in which the consideration consists solely of cash and there is no valuation period), (ii) promptly notify Dealer following any such announcement that such announcement has been made, and (iii) promptly deliver to Dealer following the making of any such announcement information indicating (A) Counterparty’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months preceding the date of the announcement of such transaction and (B) Counterparty’s block purchases (as defined in Rule 10b‑18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the three full calendar months preceding the date of the announcement of such transaction.  In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders.

(v)Neither Counterparty nor any of its affiliated purchasers (within the meaning of Rule 10b-18 under the Exchange Act) shall take or refrain from taking any action (including, without limitation, any direct purchases by Counterparty or any of its affiliates, or any purchases by a party to a derivative transaction with Counterparty or any of its affiliates), either under this Confirmation, under an agreement with another party or otherwise, that might reasonably be expected to cause any purchases of Shares by Dealer or any of its affiliates in connection with any Cash Settlement or Net Share Settlement of this Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 determined as if all such foregoing purchases were made by Counterparty.

(vi)Counterparty will not engage in any “distribution” (as defined in Regulation M) that would cause a “restricted period” (as defined in Regulation M) to occur during any Unwind Period.

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(vii)Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(viii)Counterparty is not insolvent, nor will Counterparty be rendered insolvent as a result of this Transaction or its performance of the terms hereof.

(ix)Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of this Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815‑40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

(x)Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency.

(xi)To Counterparty’s actual knowledge, no federal, state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, other than Sections 13 and 16 under the Exchange Act or Article VI of the Articles of Restatement of Counterparty, as may be amended and supplemented from time to time (the “Articles”); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or its affiliates solely as a result of their being a financial institution or broker-dealer.

(xii)No filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Counterparty of this Confirmation and the consummation of this Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act and (ii) as may be required to be obtained under state securities laws.

(xiii)Counterparty (i) has such knowledge and experience in financial and business affairs as to be capable of evaluating the merits and risks of entering into this Transaction; (ii) has consulted with its own legal, financial, accounting and tax advisors in connection with this Transaction; and (iii) is entering into this Transaction for a bona fide business purpose.

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(xiv)Counterparty will, by the next succeeding Scheduled Trading Day notify Dealer upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default, a Potential Event of Default or a Potential Adjustment Event.

(xv)Ownership positions held by Dealer or any of its affiliates solely in its capacity as a nominee or fiduciary do not constitute “ownership” by Dealer, and Dealer shall not be deemed or treated as the beneficial or constructive “owner” of such positions, in each case, for purposes of Article VI of the Articles, including, without limitation, Section 6.1(b) thereof.

(xvi)Counterparty (i) is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies involving a security or securities; (ii) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (iii) has total assets of at least USD 50 million as of the date hereof. 

(f)Acceleration Events.  Each of the following events shall constitute an “Acceleration Event”:

(i)Stock Borrow Event.  In the commercially reasonable judgment of Dealer (A) Dealer (or an affiliate of Dealer) is not able to hedge in a commercially reasonable manner its exposure under this Transaction because insufficient Shares are made available for borrowing by securities lenders or (B) Dealer (or an affiliate of Dealer) would incur a cost to borrow (or to maintain a borrow of) Shares to hedge in a commercially reasonable manner its exposure under this Transaction that is greater than a rate equal to [200] basis points per annum (each, a “Stock Borrow Event”);

(ii)Dividends and Other Distributions.  On any day occurring after the Trade Date, Counterparty declares a distribution, issue or dividend to existing holders of the Shares of (A) any cash dividend (other than an Extraordinary Dividend) to the extent all cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date (with the Trade Date being a Forward Price Reduction Date for purposes of this paragraph (ii) only) to, but excluding, the next subsequent Forward Price Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period on Schedule I (any such excess, an “Excess Dividend”), (B) any Extraordinary Dividend, (C) any share capital or other securities of another issuer acquired or owned (directly or indirectly) by Counterparty as a result of a spin-off or other similar transaction or (D) any other type of securities (other than Shares), rights or warrants or other assets, in any case for payment (cash or other consideration) at less than the prevailing market price, as determined in a commercially reasonable manner by Dealer; “Extraordinary Dividend” means any dividend or distribution (that is not an ordinary cash dividend) declared by the Issuer with respect to the Shares that, in the commercially reasonable determination of Dealer, is (1) a dividend or distribution declared on the Shares at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four

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quarterly periods, (2) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an “extraordinary” or “special” dividend or distribution, (3) a payment by the Issuer to holders of Shares out of the Issuer’s capital and surplus or (4) any other “special” dividend or distribution on the Shares that is, by its terms or declared intent, outside the normal course of operations or normal dividend policies or practices of the Issuer; for the avoidance of doubt, any amount calculated pursuant to this “Acceleration Events” section as a result of an Excess Dividend or Extraordinary Dividend shall not be adjusted by the value associated with such Excess Dividend or Extraordinary Dividend, as applicable;

(iii)ISDA Termination.  Either Dealer or Counterparty has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement;

(iv)Other ISDA Events.  The announcement of any event that, if consummated, would result in an Extraordinary Event or the occurrence of any Change in Law; provided that, in case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); provided further that (i) the definition of “Change in Law” provided in Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (A) replacing the phrase “the interpretation” in the third line thereof with the phrase “or announcement or statement of the formal or informal interpretation” and (B) immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by Dealer on the Trade Date” and (ii) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (B) the promulgation of or any change in or announcement or statement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Wall Street Transparency and Accountability Act of 2010 (the “WSTAA”) or any similar provision in any legislation enacted on or after the Trade Date; or

(v)Ownership Event.  In the good faith judgment of Dealer, on any day, the Share Amount for such day exceeds the Post-Effective Limit for such day (if any applies) (each, an “Ownership Event”).  For purposes of this clause (v), the “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation or regulatory order or Counterparty constituent document that for any reason is, or after the Trade Date becomes, applicable to ownership of Shares (“Applicable Provisions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership of under the Applicable Provisions, as determined by Dealer in its reasonable discretion.  The “Post-Effective Limit” means (x) the minimum number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or

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would result in an adverse effect on a Dealer Person, under the Applicable Provisions, as determined by Dealer in its reasonable discretion, minus (y) 1.0% of the number of Shares outstanding.

(g)Termination Settlement.  Upon the occurrence of any Acceleration Event, Dealer shall have the right to designate, upon at least one Scheduled Trading Day’s notice, any Scheduled Trading Day following such occurrence to be a Settlement Date hereunder (a “Termination Settlement Date”) to which Physical Settlement shall apply, and to select the number of Settlement Shares relating to such Termination Settlement Date; provided that (i) in the case of an Acceleration Event arising out of an Ownership Event, the number of Settlement Shares so designated by Dealer shall not exceed the number of Shares necessary to reduce the Share Amount to reasonably below the Post-Effective Limit and (ii) in the case of an Acceleration Event arising out of a Stock Borrow Event, the number of Settlement Shares so designated by Dealer shall not exceed the number of Shares as to which such Stock Borrow Event exists.  If, upon designation of a Termination Settlement Date by Dealer pursuant to the preceding sentence, Counterparty fails to deliver the Settlement Shares relating to such Termination Settlement Date when due or otherwise fails to perform obligations within its control in respect of this Transaction, it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply.  If an Acceleration Event occurs during an Unwind Period relating to a number of Settlement Shares to which Cash Settlement or Net Share Settlement applies, then on the Termination Settlement Date relating to such Acceleration Event, notwithstanding any election to the contrary by Counterparty, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which Dealer has unwound its commercially reasonable hedge in a commercially reasonable manner and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares and (y) the Settlement Shares designated by Dealer in respect of such Termination Settlement Date.  If an Acceleration Event occurs after Counterparty has designated a Settlement Date to which Physical Settlement applies but before the relevant Settlement Shares have been delivered to Dealer, then Dealer shall have the right to cancel such Settlement Date and designate a Termination Settlement Date in respect of such Shares pursuant to the first sentence hereof.

(h)Private Placement Procedures.  If Counterparty is unable to comply with the provisions of sub-paragraph (ii) of “Agreements and Acknowledgments Regarding Shares” above because of a change in law or a change in the policy of the Securities and Exchange Commission or its staff, or Dealer otherwise determines that in its reasonable opinion any Shares to be delivered to Dealer by Counterparty may not be freely returned by Dealer or its affiliates to securities lenders as described under such sub-paragraph (ii) or otherwise constitute “restricted securities” as defined in Rule 144 under the Securities Act, then delivery of any such Shares (the “Restricted Shares”) shall be effected as provided below, unless waived by Dealer.

(i)If Counterparty delivers the Restricted Shares pursuant to this clause (i) (a “Private Placement Settlement”), then delivery of Restricted Shares by Counterparty shall be effected in accordance with private placement procedures

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customary for private placements of equity securities of substantially similar size with respect to such Restricted Shares reasonably acceptable to Dealer; provided that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer), and if Counterparty fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Counterparty and Section 6 of the Agreement shall apply.  The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements of equity securities of a substantially similar size, all reasonably acceptable to Dealer.  In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Restricted Shares.  Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Dealer to Counterparty of the number of Restricted Shares to be delivered pursuant to this clause (i).  For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date that would otherwise be applicable.

(ii)If Counterparty delivers any Restricted Shares in respect of this Transaction, Counterparty agrees that (A) such Shares may be transferred by and among Dealer and its affiliates and (B) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).

(i)Indemnity.  Counterparty agrees to indemnify Dealer and its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such affiliate or person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities, joint and several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Confirmation or the Agreement and will reimburse any Indemnified Party for all reasonable expenses

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(including reasonable legal fees and expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto, except to the extent determined in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer’s negligence, fraud, bad faith and/or willful misconduct or from a breach of any representation or covenant of Dealer contained in this Confirmation or the Agreement.  The foregoing provisions shall survive any termination or completion of the Transaction.

(j)Waiver of Trial by Jury.  COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVE (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.

(k)Governing Law/Jurisdiction.  This Confirmation and any claim, controversy or dispute arising under or related to this Confirmation shall be governed by the laws of the State of New York without reference to the conflict of laws provisions thereof.  The parties hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the United States Court for the Southern District of New York in connection with all matters relating hereto and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts.

(l)Designation by Dealer.  Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations.  Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.

(m)Insolvency Filing.  Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, upon any Insolvency Filing or other proceeding under the Bankruptcy Code in respect of the Issuer, this Transaction shall automatically terminate on the date thereof without further liability of either party to this Confirmation to the other party (except for any liability in respect of any breach of representation or covenant by a party under this Confirmation prior to the date of such Insolvency Filing or other proceeding), it being understood that this Transaction is a contract for the issuance of Shares by the Issuer.

(n)Disclosure.  Effective from the date of commencement of discussions concerning the Transaction, each of Dealer and Counterparty and each of their employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all

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materials of any kind (including opinions or other tax analyses) relating to such tax treatment and tax structure.

(o)Right to Extend.  Dealer may postpone any Settlement Date or any other date of valuation or delivery, with respect to some or all of the relevant Settlement Shares, if Dealer determines, based on advice of counsel, that such extension is reasonably necessary or appropriate to enable Dealer to effect purchases of Shares in connection with its hedging activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal and regulatory requirements.

(p)Counterparty Share Repurchases.  Counterparty agrees not to repurchase, directly or indirectly, any Shares if, immediately following such purchase, the Outstanding Share Percentage would be equal to or greater than 4.5%.  The “Outstanding Share Percentage” as of any day is the fraction (1) the numerator of which is the aggregate of the Number of Shares for this Transaction and the “Number of Shares” (as defined in the applicable Additional Confirmation) under any outstanding Additional Transactions and (2) the denominator of which is the number of Shares outstanding on such day.

(q)Limit on Beneficial Ownership.  Notwithstanding any other provisions hereof, Dealer shall not have the right to acquire Shares hereunder and Dealer shall not be entitled to take delivery of any Shares hereunder (in each case, whether in connection with the purchase of Shares on any Settlement Date or any Termination Settlement Date, any Private Placement Settlement or otherwise) to the extent (but only to the extent) that, after such receipt of any Shares hereunder, (i) the Share Amount would exceed the Post‑Effective Limit or (ii) Dealer and each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder (the “Dealer Group”) would directly or indirectly beneficially own (as such term is defined for purposes of Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) in excess of 8.0% of the then outstanding Shares (the “Threshold Number of Shares”).  Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, (i) the Share Amount would exceed the Post-Effective Limit or (ii) the Dealer Group would directly or indirectly so beneficially own in excess of the Threshold Number of Shares.  If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Counterparty’s obligation to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, after such delivery, (i) the Share Amount would not exceed the Post-Effective Limit or (ii) the Dealer Group would not directly or indirectly so beneficially own in excess of the Threshold Number of Shares.

In addition, notwithstanding anything herein to the contrary, if any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of the immediately preceding paragraph, Dealer shall be permitted to make any payment due in respect of such Shares to Counterparty in two or more tranches that correspond in amount to the

25

 

 

number of Shares delivered by Counterparty to Dealer pursuant to the immediately preceding paragraph.

(r)Commodity Exchange Act.  Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the “CEA”), the Agreement and this Transaction are subject to individual negotiation by the parties and have not been executed or traded on a “trading facility” as defined in Section 1a(51) of the CEA.

(s)Bankruptcy Status.  Subject to Paragraph 7(m) above, Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights with respect to the transactions contemplated hereby that are senior to the claims of Counterparty’s common stockholders in any U.S. bankruptcy proceedings of Counterparty; provided,  however, that nothing herein shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to this Confirmation and the Agreement; and provided,  further, that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transaction other than this Transaction.

(t)No Collateral or Setoff.  Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Counterparty hereunder are not secured by any collateral.  Obligations in respect of this Transaction shall not be set off against any other obligations of the parties, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be set off against obligations in respect of this Transaction, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff, except that set-off solely with respect to amounts payable under this Transaction and any and all Additional Transactions governed by the Agreement shall be permissible.

(u)Tax Matters.

(i)For the purpose of Section 3(f) of the Agreement:

(1)Dealer makes the following representations:

a.It (or its regarded owner for U.S. federal income tax purposes) is a “U.S. person” (as that term is used in section 1.1441‑4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal income tax purposes

b.[It is a national banking association organized and existing under the laws of the United States of America and is an exempt recipient under section 1.6049-4(c)(1)(ii)(M) of the United States Treasury Regulations][It is a broker-dealer firm registered with the Commission under the Exchange

26

 

 

Act and is an exempt recipient under section 1.6049-4(c)(1)(ii)(I) of the United States Treasury Regulations].

c.[].

(2)Counterparty makes the following representations:

a.It is a “U.S. person” (as that term is used in section 1.1441‑4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal income tax purposes.

b.It is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Maryland, and is an exempt recipient under section 1.6049-4(c)(1)(ii)(A) of the Treasury Regulations. 

(ii)Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act.  “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”).  For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.

(iii)HIRE Act.  To the extent that either party to the Agreement with respect to this Transaction is not an adhering party to the ISDA 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015 and available at www.isda.org, as may be amended, supplemented, replaced or superseded from time to time (the “871(m) Protocol”), the parties agree that the provisions and amendments contained in the Attachment to the 871(m) Protocol are incorporated into and apply to the Agreement with respect to this Transaction as if set forth in full herein. The parties further agree that, solely for purposes of applying such provisions and amendments to the Agreement with respect to this Transaction, references to “each Covered Master Agreement” in the 871(m) Protocol will be deemed to be references to the Agreement with respect to this Transaction, and references to the “Implementation Date” in the 871(m) Protocol will be deemed to be references to the Trade Date of this Transaction.

(iv)Tax Documentation.  For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Counterparty shall provide to Dealer a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor thereto, (i) on or before the date of execution of this Confirmation; (ii) promptly upon reasonable demand by Dealer;

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and (iii) promptly upon learning that any such tax form previously provided by Counterparty has become invalid, obsolete or incorrect.  Additionally, Counterparty shall, promptly upon request by Dealer, provide such other tax forms and documents requested by Dealer.

(v)Wall Street Transparency and Accountability Act of 2010.  The parties hereby agree that none of (i) Section 739 of the WSTAA, (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party’s right to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased cost, regulatory change or similar event under this Confirmation, the Equity Definitions or the Agreement (including, but not limited to, any right arising from any Acceleration Event).

(w)Other Forwards / Dealers. Dealer acknowledges that Counterparty has entered or may enter in the future into one or more substantially similar forward transactions for the Shares (each, an “Other Forward” and collectively, the “Other Forwards”) with one or more dealers, and/or affiliates thereof (each, an “Other Dealer” and collectively, the “Other Dealers”).  Dealer and Counterparty agree that if Counterparty designates a “Settlement Date” with respect to one or more Other Forwards for which “Cash Settlement” or “Net Share Settlement” is applicable, and the resulting “Unwind Period” for such Other Forwards coincides for any period of time with an Unwind Period for this Transaction (the “Overlap Unwind Period”), Counterparty shall notify Dealer at least one Scheduled Trading Day prior to the commencement of such Overlap Unwind Period of the first Scheduled Trading Day and length of such Overlap Unwind Period, and Dealer shall be permitted to purchase Shares to unwind its hedge in respect of this Transaction only on alternating Scheduled Trading Days during such Overlap Unwind Period, commencing on the first, second, third or later Scheduled Trading Day of such Overlap Unwind Period, as notified to Dealer by Counterparty at least one Business Day prior to such Overlap Unwind Period (which alternating Scheduled Trading Days, for the avoidance of doubt, may be every other Scheduled Trading Day if there is only one Other Dealer, every third Scheduled Trading Day if there are two Other Dealers, etc.).

(x)Delivery of Cash. For the avoidance of doubt, nothing in this Confirmation shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of this Transaction, except in circumstances where the required cash settlement thereof is permitted for classification of the contract as equity by ASC 815-40 (formerly EITF 00-19) as in effect on the Trade Date (including, without limitation, where Counterparty so elects to deliver cash or fails timely to elect to deliver Shares in respect of such settlement). For the avoidance of doubt, the preceding sentence shall not be construed as limiting (i) Paragraph 7(i) hereunder or (ii) any damages that may be payable by Counterparty as a result of breach of this Confirmation.

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[(y)] U.S. Stay Regulations. To the extent that the QFC Stay Rules are applicable hereto, then the parties agree that (i) to the extent that prior to the date hereof both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a Protocol Covered Agreement and each party shall be deemed to have the same status as “Regulated Entity” and/or “Adhering Party” as applicable to it under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated into and form a part of this Confirmation and each party shall be deemed to have the status of “Covered Entity” or “Counterparty Entity” (or other similar term) as applicable to it under the Bilateral Agreement; or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Confirmation, both parties hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any inconsistencies between this Confirmation and the terms of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to “this Confirmation” include any related credit enhancements entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall be incorporated into any related covered affiliate credit enhancements, with all references to Dealer replaced by references to the covered affiliate support provider.

QFC Stay Rules” mean the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.

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[(z)] Risk Disclosure.  Counterparty represents and warrants that it has received, read and understands Dealer’s “Risk Disclosure Statement Regarding OTC Derivatives Products” and acknowledges the terms thereof as if it had signed the Risk Disclosure Statement Verification contained therein as of the date hereof.

 

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Please confirm your agreement to be bound by the terms stated herein by executing the copy of this Confirmation enclosed for that purpose and returning it to [●] at [DEALER NAME] [(email [●])].

Yours sincerely,

[DEALER NAME]


By:

Name: [●]
Title: [●]

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Confirmed as of the date first above written:

UDR, INC.


By:

Name: [●]
Title: [●]

 

 

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SCHEDULE I

Forward Price
Reduction Date

Forward Price
Reduction
Amount

Trade Date

USD []

[].......................................................................................................................

USD []

[].......................................................................................................................

USD []

[].......................................................................................................................

USD []

[].......................................................................................................................

USD []

[].......................................................................................................................

USD []

[].......................................................................................................................

USD []

 

 

 

 

 

 

ANNEX A

PRICING SUPPLEMENT

[DEALER NAME AND ADDRESS]

UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Fax No.:  (720) 283-2453

Attention:Warren L. Troupe

David G. Thatcher

 

Ladies and Gentlemen:

This Pricing Supplement is the Pricing Supplement contemplated by the Registered Forward Transaction dated as of [         ], 20[  ] (the “Confirmation”) between UDR, Inc., (“Counterparty”) and [DEALER NAME] (“Dealer”).

For all purposes under the Confirmation,

(a)the Hedge Completion Date is [         ];

(b)the Number of Shares shall be [         ], subject to further adjustment in accordance with the terms of the Confirmation;

(c)the Initial Forward Price shall be USD [         ]; and

(d)the Final Date shall be [         ].

Very truly yours,
[DEALER NAME]


By:

Name:
Title:

 

 

Confirmed as of the date first above written:

UDR, INC.


By:

Name: [●]
Title: [●]

 

 

 

 

 

 

 

 

 

(Back To Top)

Section 3: EX-1.2 (EX-1.2)

8-K_ATM_and_MTN_Ex_1_2

Exhibit 1.2

UDR, INC.
Medium-Term Notes, Series A
Due Nine Months or More From Date of Issue
 

Fully and Unconditionally Guaranteed by

UNITED DOMINION REALTY, L.P.

(a Delaware limited partnership)

AMENDMENT NO. 3 TO THE

THIRD AMENDED AND RESTATED DISTRIBUTION AGREEMENT

May 7, 2020

 

 

 

 

 

 

 

 

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

 

Regions Securities LLC

1180 West Peachtree St., NW, Suite 1400

Atlanta, Georgia 30309

BNY Mellon Capital Markets, LLC

240 Greenwich Street, 3rd Floor

New York, New York 10286

RBC Capital Markets, LLC

200 Vesey Street, 8th Floor

New York, New York 10281

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York  10013

Samuel A. Ramirez & Company, Inc.

61 Broadway, 29th Floor

New York, New York 10006

Jefferies LLC

520 Madison Avenue

New York, New York 10022

SunTrust Robinson Humphrey, Inc.

3333 Peachtree Road NE

Atlanta Georgia 30326

J.P. Morgan Securities LLC

383 Madison Avenue, 3rd Floor

New York, New York  10179

TD Securities (USA) LLC

31 West 52nd Street

New York, New York 10019

Morgan Stanley & Co. LLC

1585 Broadway

New York, New York  10036

U.S. Bancorp Investments, Inc.

214 N. Tryon Street, 26th Floor

Charlotte, North Carolina 28202

MUFG Securities Americas Inc.

1221 Avenue of the Americas, 6th Floor

New York, New York 10020

Wells Fargo Securities, LLC

550 S. Tryon Street

Charlotte, North Carolina 28202

PNC Capital Markets LLC

300 Fifth Avenue

Pittsburgh, Pennsylvania 15222

 

 

May 7, 2020

Page 2

 

Ladies and Gentlemen:

Reference is made to the Third Amended and Restated Distribution Agreement, dated September 1, 2011 (the “Agreement”), by and among UDR, Inc. (the “Company”) and United Dominion Realty, L.P. (the “Operating Partnership”) and Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, BofA Securities, Inc. (as successor in interest to Merrill Lynch, Pierce, Fenner & Smith Incorporated), Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC, as amended by Amendment No. 1 thereto, dated July 29, 2014, and Amendment No. 2 thereto, dated April 27, 2017, by and among the Company, the Operating Partnership and Citigroup Global Markets Inc., J.P. Morgan Securities LLC, BofA Securities, Inc. (as successor in interest to Merrill Lynch, Pierce, Fenner & Smith Incorporated), Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC (collectively,  the “Parties”).  On March 3, 2020, the Company and the Operating Partnership filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”), on Form S-3 (File No. 333-236846) (the “Registration Statement”), in respect of certain of the Company’s and the Operating Partnership’s securities, in anticipation of the expiration of the Company’s automatic shelf registration statement on Form S-3 (File No. 333-217491) (the “Expiring Registration Statement”).  The Parties wish to amend the Agreement to reference the Registration Statement instead of the Expiring Registration Statement and to reflect the addition of the Agents, representations and warranties, and sections noted below (this “Amendment”).  The Parties therefore hereby agree as follows:

1. Commission File Number.  The third paragraph of the Agreement is hereby amended so that the reference to the Commission file number of the automatic shelf registration statement on Form S-3 filed by the Company with the Commission shall be file number 333-236846.

 

2. Effective Date.  Section 2(a)(iii) of the Agreement is hereby amended to reflect that the effective date of the Registration Statement is May 7, 2020.

 

3. Agents.  All references to “the Agents” in the Agreement or in any other agreement, instrument or other document executed in connection with or under such Agreement or delivered pursuant thereto shall hereafter, for all purposes unless the context requires otherwise, refer exclusively to BofA Securities, Inc., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., PNC Capital Markets LLC, Regions Securities LLC, RBC Capital Markets, LLC, Samuel A. Ramirez & Company, Inc., SunTrust Robinson Humphrey, Inc., TD Securities (USA) LLC, U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC.

 

4. Cybersecurity.  A new Section 2(a)(xxxi) to the Agreement is hereby created, which shall read as follows:  

 

(xxxi)  Cybersecurity.  Except as would not 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, (i) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’

 

 

May 7, 2020

Page 3

 

information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”); (ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; (iii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,  internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification; and (iv) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.

 

5. Notices.  Section 13 is hereby deleted in its entirety and replaced with the following:

 

Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below.

 

If to the Company of the Operating Partnership to:

 

UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Facsimile:  (720) 283-2453

Attention:Warren L. Troupe

David G. Thatcher

 

With a copy to:


Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW
Suite 6000
Washington, D.C. 20006
Facsimile:  (202) 887-0763

Attention:David M. Lynn, Esq.

 

If to the Agents:

 

BofA Securities, Inc.

50 Rockefeller Plaza

NY1-050-12-01

New York, New York 10020

Attention: High Grade Transaction Management/Legal

Facsimile: (646) 855-5958

 

 

May 7, 2020

Page 4

 

 

BNY Mellon Capital Markets, LLC

240 Greenwich Street, 3rd Floor

New York, New York 10286

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

Attention: Transaction Execution Group

Facsimile: (646) 291-5209

 

Jefferies LLC

520 Madison Avenue

New York, New York 10022

Attention: General Counsel

Facsimile: (646) 619-4437

 

J.P. Morgan Securities LLC

383 Madison Avenue, 3rd Floor

New York, New York 10179

Attention: Medium-Term Note Desk

Facsimile: (212) 834-6081

 

Morgan Stanley & Co. LLC

1585 Broadway, 29th Floor

New York, New York 10036

Attention: Investment Banking Division

Facsimile: (212) 507-8999

 

MUFG Securities Americas Inc.

1221 Avenue of the Americas, 6th Floor

New York, New York 10020

Attention: Capital Markets Group

Facsimile: (646) 434-3455

 

PNC Capital Markets LLC

300 Fifth Avenue, 10th Floor

Pittsburgh, Pennsylvania 15222

Attention: Debt Capital Markets, Transaction Execution

Facsimile: (412) 762-2760

 

Regions Securities LLC

1180 West Peachtree St., NW, Suite 1400

Atlanta, Georgia 30309

 

RBC Capital Markets, LLC

 

 

May 7, 2020

Page 5

 

200 Vesey Street, 8th Floor

New York, New York 10281

Attention: DCM Transaction Management

Facsimile: (212) 428-6308

 

Samuel A. Ramirez & Company, Inc.

61 Broadway, 29th Floor

New York, New York 10006

 

SunTrust Robinson Humphrey, Inc.

3333 Peachtree Road NE

Atlanta, Georgia 30326

Attention: Investment Grade Debt Capital Markets

Facsimile: (404) 926-5027

 

TD Securities (USA) LLC

31 West 52nd Street, 18th Floor

New York, New York 10019

Attention: Transaction Management Group

 

U.S. Bancorp Investments, Inc.

214 N. Tryon Street, 26th Floor

Charlotte, North Carolina 28202

Attention: Credit Fixed Income

Facsimile: (704) 335-2393

 

Wells Fargo Securities, LLC

550 South Tryon Street, 5th Floor

Charlotte, North Carolina 28202

Attention: Transaction Management

Facsimile: (704) 410-0326

 

6. Recognition of U.S. Special Resolution Regimes. A new Section 17 to the Agreement is hereby created, which shall read as follows:

 

(a) In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

(b) In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised

 

 

May 7, 2020

Page 6

 

under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States

For purposes of this Section 17, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

7. Governing Law; Forum. This Amendment and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State.  Any suit, action or proceeding brought by the Company against any of the agents referenced above in connection with or arising under this Amendment shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York.

8. Counterparts.  This Agreement shall be valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of the party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature.  Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.

9. Agreement Remains in Effect.  Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect.  As amended hereby, the Agreement is ratified and confirmed in all respects.

 

Terms used herein but not otherwise defined are used herein as defined in the Agreement.

 

 

 

 

If the foregoing is in accordance with your understanding of our agreement, please sign and return the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company, the Operating Partnership and each of you.

 

 

Very truly yours,

 

 

 

 

 

 

 

 

 

 

 

 

UDR, Inc.

 

 

 

 

 

 

 

By:

 

/s/ Joseph D. Fisher

 

 

Name:

 

Joseph D. Fisher

 

 

Title:

 

Senior Vice President and Chief

 

 

 

 

Financial Officer

 

 

 

 

 

 

 

United Dominion Realty, L.P.

 

 

 

 

 

 

 

By UDR, Inc., its general partner

 

 

 

 

 

 

 

By:

 

/s/ Joseph D. Fisher

 

 

Name:

 

Joseph D. Fisher

 

 

Title:

 

Senior Vice President and Chief

 

 

 

 

Financial Officer

 

 

 

 

 

Signature Page to Distribution Agreement Amendment No. 3

 

The foregoing Amendment No. 3 to

the Agreement is hereby confirmed

and accepted as of the date first

written above.

 

 

 

 

 

BOFA SECURITIES, INC.

 

 

 

 

 

 

 

By:

/s/ Hicham Hamdouch

 

 

Name: Hicham Hamdouch

 

 

Title: Managing Director

 

 

 

 

 

 

BNY MELLON CAPITAL MARKETS, LLC

 

 

 

 

 

 

 

By:

/s/ Dan Klinger

 

 

Name: Dan Klinger

 

 

Title: MD

 

 

 

 

 

 

CITIGROUP GLOBAL MARKETS INC.

 

 

 

 

 

 

 

By:

/s/ Adam D. Bordner

 

 

Name: Adam D. Bordner

 

 

Title: Director

 

 

 

 

 

JEFFERIES LLC

 

 

 

 

 

 

 

By:

/s/ Matt Casey

 

 

Name: Matt Casey

 

 

Title: Managing Director

 

 

 

 

 

 

J.P.MORGAN SECURITIES LLC

 

 

 

 

 

 

 

By:

/s/ Stephen L. Sheiner

 

 

Name: Stephen L. Sheiner

 

 

Title: Executive Director

 

Signature Page to Distribution Agreement Amendment No. 3

 

 

 

 

MORGAN STANLEY & CO. LLC

 

 

 

 

 

 

 

By:

/s/ Adam Coleman

 

 

Name: Adam Coleman

 

 

Title: Vice President

 

 

 

 

 

 

MUFG SECURITIES AMERICAS INC.

 

 

 

 

 

 

 

By:

/s/ Richard Testa

 

 

Name: Richard Testa

 

 

Title: Managing Director

 

 

 

 

 

 

PNC CAPITAL MARKETS LLC

 

 

 

 

 

 

 

By:

/s/ Valerie Shadeck

 

 

Name: Valerie Shadeck

 

 

Title: Director

 

 

 

 

 

 

REGIONS SECURITIES LLC

 

 

 

 

 

 

 

By:

/s/ Thomas Bove

 

 

Name: Thomas Bove

 

 

Title: Vice President

 

 

 

 

 

 

RBC CAPITAL MARKETS, LLC

 

 

 

 

 

 

 

By:

/s/ Scott Primrose

 

 

Name: Scott Primrose

 

 

Title: Authorized Signatory

 

 

 

 

 

 

SAMUEL A. RAMIREZ & COMPANY, INC.

 

 

 

 

 

 

 

By:

/s/ Lawrence F. Goldman

 

 

Name: Lawrence F. Goldman

 

 

Title: MD

 

Signature Page to Distribution Agreement Amendment No. 3

 

 

 

 

SUNTRUST ROBINSON HUMPHREY, INC.

 

 

 

 

 

 

 

By:

/s/ Robert Nordlinger

 

 

Name: Robert Nordlinger

 

 

Title: Director

 

 

 

 

 

 

TD SECURITIES (USA) LLC

 

 

 

 

 

 

 

By:

/s/ Luiz Lanfredi

 

 

Name: Luiz Lanfredi

 

 

Title: Director

 

 

 

 

 

 

U.S. BANCORP INVESTMENTS, INC.

 

 

 

 

 

 

 

By:

/s/ Charles P. Carpenter

 

 

Name: Charles P. Carpenter

 

 

Title: Senior Vice President

 

 

 

 

 

 

WELLS FARGO SECURITIES, LLC

 

 

 

 

 

 

 

By:

/s/ Carolyn Hurley

 

 

Name: Carolyn Hurley

 

 

Title: Director

 

 

Signature Page to Distribution Agreement Amendment No. 3

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Section 4: EX-5.1 (EX-5.1)

8-K_ATM_and_MTN_Ex_5_1

Exhibit 5.1

 

 

 


Facsimile: 202.887.0763

 

 

 

 

 

 

 

 

 

 

 

Picture 1

 

2000 Pennsylvania Ave., NW
Washington, D.C.
20006-1888

Telephone: 202.887.1500
Facsimile: 202.887.0763

www.mofo.com

 

morrison & foerster llp

beijing, berlin, boston,

brussels, denver, hong kong,

london, los angeles, new york,

northern virginia, palo alto,

san diego, san francisco, shanghai,

singapore, tokyo, washington, d.c.

 

May 7, 2020

 

 

Board of Directors

UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

 

Re: UDR, Inc. - Common Stock Sold Under the ATM Sales Agreement

 

Ladies and Gentlemen:

We have acted as counsel to UDR, Inc., a Maryland corporation (the “Company”), in connection with the issuance and sale from time to time by the Company of up to 20,000,000 shares (the “Shares”) of the Company’s common stock, $0.01 par value (“Common Stock”), pursuant to a Registration Statement on Form S-3 (Registration Statement No. 333-236846) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus dated March 3, 2020 (the “Base Prospectus”), and the prospectus supplement dated May 7, 2020, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (the “Prospectus Supplement”). The Base Prospectus and the Prospectus Supplement are collectively referred to as the “Prospectus.” The Shares are to be sold by the Company pursuant to the terms of the ATM Sales Agreement, dated July 31, 2017, and amended May 7, 2020 (the “Sales Agreement”), among the Company and J.P. Morgan Securities LLC, BofA Securities, Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC, Jefferies LLC and BTIG, LLC, acting as sales agents, forward sellers (except in the case of BTIG, LLC) and/or principals, and JPMorgan Chase Bank, National Association, Bank of America, N.A., Citibank, N.A., Morgan Stanley & Co. LLC, Wells Fargo Bank, National Association and Jefferies LLC, acting as forward purchasers, and one or more related Confirmations (as defined in the Sales Agreement), and in the manner described in the Registration Statement and the Prospectus.  

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Articles Supplementary of the Company; (ii) the Articles of Restatement of the Company, as amended through the date hereof (the “Charter”); (iii) the Amended and Restated Bylaws of the Company, as amended through the date hereof; (iv) certain resolutions of the board of directors of the Company, relating to the issuance, sale and registration of the Shares; (v) the Registration Statement; and (vi) the Prospectus. In addition, we have examined originals or copies, certified or otherwise identified to our

Picture 2

 

UDR, Inc.

May 7, 2020

Page 2

 

 

satisfaction, of certain other corporate records, documents, instruments and certificates of public officials and of the Company, and we have made such inquiries of officers of the Company and public officials and considered such questions of law as we have deemed necessary for purposes of rendering the opinions set forth herein.  

In connection with this opinion, we have assumed the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with originals of all items submitted to us as copies. In making our examination of documents executed by parties other than the Company, we have assumed that each other party has the power and authority to execute and deliver, and to perform and observe the provisions of, such documents and has duly authorized, executed and delivered such documents, and that such documents constitute the legal, valid and binding obligations of each such party. We also have assumed the integrity and completeness of the minute books of the Company presented to us for examination. With respect to certain factual matters, we have relied upon certificates of officers of the Company. We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Charter. We have further assumed that, upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter. 

Based upon, subject to and limited by the foregoing, it is our opinion that, upon issuance, delivery and payment therefor in the manner contemplated by the Registration Statement, the Prospectus, the Sales Agreement (and any related Confirmation) and resolutions of the board of directors of the Company or a duly authorized committee thereof, the Shares will be validly issued, fully paid and nonassessable.

We do not express any opinion herein concerning any law other than the Maryland General Corporation Law (including the statutory provisions, all applicable provisions of the Maryland Constitution and the reported judicial decisions interpreting the foregoing), as in effect on the date hereof.  

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission on or about May 7, 2020, which will be incorporated by reference in the Registration Statement, and to reference to us under the caption “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.

Very truly yours,

/s/ Morrison & Foerster LLP

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