As filed with the Securities and Exchange Commission on May 20, 1996
Registration No. 33-64275
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED DOMINION REALTY TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
VIRGINIA 54-0857512
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
10 SOUTH 6TH STREET
RICHMOND, VIRGINIA 23219-3802
(804) 780-2691
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN P. MCCANN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
UNITED DOMINION REALTY TRUST, INC.
10 SOUTH 6TH STREET
RICHMOND, VIRGINIA 23219-3802
(804) 780-2691
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JAMES W. FEATHERSTONE, III, ESQ. HOWARD G. GODWIN, JR., ESQ.
HUNTON & WILLIAMS BROWN & WOOD
951 EAST BYRD STREET ONE WORLD TRADE CENTER
RICHMOND, VIRGINIA 23219-4074 NEW YORK, NEW YORK 10048-0557
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this registration statement in light of market
conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.[ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]____________
If this form is a post-effective amendment filed pursuant to Rule 462(b) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[X]
THE PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS
RELATING ALSO TO REGISTRATION STATEMENT NO. 33-55159. THIS REGISTRATION
STATEMENT IN THE FORM IN WHICH IT IS ORDERED EFFECTIVE ALSO CONSTITUTES
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-55159 AND SUCH
POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE
EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C)
OF THE SECURITIES ACT OF 1933. THIS REGISTRATION STATEMENT AND THE REGISTRATION
STATEMENT AMENDED HEREBY ARE COLLECTIVELY REFERRED TO HEREIN AS THE
"REGISTRATION STATEMENT."
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SUBJECT TO COMPLETION, DATED MAY 20, 1996
PROSPECTUS
$462,312,500
[UDRT LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
United Dominion Realty Trust, Inc. (the "Company") intends to issue from time
to time its (i) unsecured senior or subordinated debt securities (the "Debt
Securities"), (ii) shares of Preferred Stock, no par value ("Preferred Stock"),
and (iii) shares of Common Stock, $1 par value ("Common Stock"), having an
aggregate initial public offering price not to exceed $462,312,500 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including European Currency Units, on terms to be determined at the time of
sale. The Debt Securities, the Preferred Stock and the Common Stock offered
hereby (collectively, the "Offered Securities") may be offered, separately or as
units with other Offered Securities, in separate series in amounts, at prices
and on terms to be determined at the time of sale and to be set forth in a
supplement to this Prospectus (a "Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company and
may be either senior Debt Securities ("Senior Securities") or subordinated Debt
Securities ("Subordinated Securities"). The Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Securities will be subordinated to all existing and future Senior
Debt of the Company, as defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, currency,
denominations, maturity, priority, interest rate, time of payment of interest,
terms of redemption at the option of the Company or repayment at the option of
the holder or for sinking fund payments, terms for conversion into or exchange
for other Offered Securities and the initial public offering price; (ii) in the
case of Preferred Stock, the series designation and number of shares and the
dividend, liquidation, redemption, conversion, voting and other rights and the
initial public offering price; (iii) in the case of Common Stock, the initial
public offering price; and (iv) in the case of all Offered Securities, whether
such Offered Securities will be offered separately or as a unit with other
Offered Securities. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of the
Company as a qualified real estate investment trust ("REIT") under the Internal
Revenue Code of 1986, as amended (the "Code").
The applicable Prospectus Supplement will also contain information, where
applicable, concerning certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered thereby.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any designated agents or any underwriters are involved in the sale of Offered
Securities, they will be identified and their compensation will be described in
the applicable Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing such Offered Securities and the method and terms of the offering
thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECU-
RITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is May 22, 1996.
RED HERRING:
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY ANY
OFFERS TO BUY BE ACCEPTED WITHOUT THE DELIVERY OF THE FINAL PROSPECTUS
SUPPLEMENT AND PROSPECTUS. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH
SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
its Regional Offices at Suite 1400, 500 West Madison Street, Chicago, Illinois
60661 and Suite 1300, 7 World Trade Center, New York, New York 10048, and can
also be inspected and copied at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of the prescribed fees.
This Prospectus is part of a registration statement on Form S-3 (together
with all amendments and exhibits, the "Registration Statement") filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules of the Commission. For further information, reference
is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents (File No. 1-10524) filed by the Company with the
Commission under the Exchange Act are hereby incorporated by reference in this
Prospectus: (i) the Company's annual report on Form 10-K for the year ended
December 31, 1995 filed on March 29, 1996, including the Company's Form 10-K/A
No. 1 to Form 10-K for the year ended December 31, 1995 filed on April 12, 1996,
the Company's Form 10-K/A No. 2 to Form 10-K for the year ended December 31,
1995 filed on May 20, 1996 and the Company's Form 10-K/A No. 3 to Form 10-K for
the year ended December 31, 1995 filed on May 20, 1996; (ii) the Company's
quarterly report on Form 10-Q for the quarter ended March 31, 1996 filed on May
15, 1996; (iii) the Company's Current Report on Form 8-K dated April 11, 1995,
including the Company's Form 8-K/A No. 1 to Form 8-K dated April 11, 1995 filed
on April 12, 1996, Form 8-K/A No. 2 to Form 8-K dated April 11, 1995 filed on
April 19, 1996 and Form 8-K/A No. 3 to Form 8-K dated April 11, 1995 filed on
May 20, 1996, the Company's Current Report on Form 8-K dated June 30, 1995 filed
on June 30, 1995, including the Company's Form 8-K/A No. 1 to Form 8-K dated
June 30, 1995 filed on January 31, 1996, the Company's Current Report on Form
8-K dated December 28, 1995 filed on January 11, 1996, including the Company's
Form 8-K/A No. 1 to Form 8-K dated December 28, 1995 filed on March 11, 1996,
Form 8-K/A No. 2 to Form 8-K dated December 28, 1995 filed on April 19, 1996,
and Form 8-K/A No. 3 to Form 8-K dated December 28, 1995 filed on May 20, 1996,
the Company's Current Report on Form 8-K dated January 31, 1996 filed on January
31, 1996 and the Company's Current Report on Form 8-K dated April 12, 1996 filed
on April 12, 1996; and (iv) the descriptions of the Common Stock and the
Preferred Stock, contained in the Company's registration statements on Form 8-A
dated April 19, 1990 and April 24, 1995, respectively, filed under the Exchange
Act, including any amendment or reports filed for the purpose of updating such
descriptions. All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of all of the Offered Securities shall be deemed to be incorporated by reference
herein.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in any accompanying Prospectus Supplement relating to a specific offering of
Offered Securities or in any other subsequently filed document, as the case
maybe, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or any accompanying Prospectus Supplement.
The Company will provide on request and without charge to each person to whom
this Prospectus is delivered a copy (without exhibits) of any or all documents
incorporated by reference into this Prospectus. Requests for such copies should
be directed to United Dominion Realty Trust, Inc., 10 South 6th Street,
Richmond, Virginia 23219-3802, Attention: Chief Financial Officer (telephone
804/780-2691).
THE COMPANY
The Company, founded in 1972, is a self-administered equity real estate
investment trust that owns and operates apartments in the Mid-Atlantic and
Southeast from Delaware to Florida and west to Tennessee. The Company is a fully
integrated real estate company with acquisition, development and asset and
property management capabilities. The Company acquires, improves, operates,
manages and selectively sells properties with the primary goal of maximizing its
funds from operations, while increasing the value of its real estate through
capital improvements and intensive management.
The Company's 155 properties include 145 apartment communities containing
35,036 apartment units, six neighborhood shopping centers and four other
commercial properties. The Company also owns two parcels of undeveloped land for
future development. Most of the Company's properties are located in the
Southeast. Management believes that the Company has benefitted from the
population and job growth within this region and that this region will continue
to provide attractive demographic and economic patterns conducive to real estate
investment in the 1990's.
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In 1995, the Company organized United Dominion Realty, L.P. (the
"Partnership") to assist the Company in competing for acquisition of properties
that meet the Company's investment strategies from seller partnerships some or
all of whose partners may wish to defer taxation of gain realized on sale
through an exchange of partnership interests. The Company has acquired three
apartment communities and land to develop an additional apartment community
using the Partnership and transferred seven of its Tennessee properties into the
Partnership. As of April 19, 1996, the Partnership was 100% owned by the Company
and one of its subsidiaries.
The Company's investment policy has been to acquire two types of apartments:
newer properties that can be acquired at discounts from replacement cost and
older or under-performing properties that can be upgraded and repositioned by
capital improvements and intensive property management. Beginning in 1991, the
Company embarked on a major expansion of its apartment portfolio involving (i)
the acquisition of apartment properties having high occupancy levels and not
requiring substantial renovation and (ii) entry into new markets, most recently
the Fort Lauderdale/Miami area and Memphis, Tennessee. The properties have been
acquired generally at significant discounts from replacement cost and at
attractive current yields. Since the beginning of 1991, net of resales, the
Company has acquired 107 apartment properties containing 26,359 units at a total
initial cost, including closing costs, of approximately $883 million.
Although no formal plans which would commit the Company for divestiture have
been made, the Company hopes to substantially liquidate its commercial
properties over time as suitable opportunities arise. At December 31, 1995, six
of the Company's then seven shopping centers were under contract to be sold.
Since January 1, 1996, the Company sold one 105,000 square foot shopping center
located in Myrtle Beach, South Carolina for $5.9 million and recognized a gain
for financial reporting purposes of $965,000. The five other centers were under
contract to be sold in a bulk sale. That contract was terminated on February 28,
1996. The Company subsequently contracted with the bulk purchaser for the sale
of one of the centers, in Myrtle Beach, South Carolina, for $7.8 million. There
is no assurance that this proposed sale will be consummated.
The Company has paid continuous quarterly distributions to its common
shareholders since 1973 and has increased its distributions each year during the
past 20 years. The current indicated annual Common Stock distribution is $.96
per share. In past years, a portion of the Company's distributions to
shareholders has been designated as a non-taxable return of capital for federal
income tax purposes.
The Company, a Virginia corporation, has its principal office at 10 South 6th
Street, Richmond, Virginia 23219-3802, and its telephone number is (804)
780-2691. Unless the context indicates otherwise, the term "Company," as used
herein, includes the Company and its subsidiaries, all of which are
wholly-owned.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for general
corporate purposes, which may include repayment of indebtedness, making
improvements to properties and the acquisition of additional properties.
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CERTAIN RATIOS
The following table sets forth the Company's consolidated ratios of earnings
to fixed charges and earnings to combined fixed charges and Preferred Stock
dividends for the periods shown.
<TABLE>
<CAPTION>
Three Months Ended
Year Ended December 31, March 31,
1991 1992 1993 1994 1995 1995 1996
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges........1.27x 1.54x 1.64x 1.69x 1.81x 1.59x 1.87x
Ratio of earnings to combined fixed
charges and Preferred Stock dividends....1.27x 1.54x 1.64x 1.69x 1.56x 1.59x 1.53x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing earnings by
fixed charges. The ratio of earnings to combined fixed charges and Preferred
Stock dividends was computed by dividing earnings by the total of fixed charges
and Preferred Stock dividends. For purposes of computing these ratios, earnings
consist of income before extraordinary items plus fixed charges other than
capitalized interest, and fixed charges consist of interest on borrowed funds
(including capitalized interest) and amortization of debt discount and expense.
The Company did not issue any shares of Preferred Stock until April of 1995;
therefore, only the ratio of earnings to combined fixed charges and Preferred
Stock dividends for the year ended December 31, 1995 includes Preferred Stock
dividends.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The Senior Securities are to be issued under an indenture dated as of
November 1, 1995, as supplemented from time to time (the "Senior Indenture"),
between the Company and First Union National Bank of Virginia (the "Senior
Indenture Trustee"), and the Subordinated Securities are to be issued under an
indenture dated as of August 1, 1994, as supplemented from time to time (the
"Subordinated Indenture"), between the Company and Crestar Bank (the
"Subordinated Indenture Trustee"). The term "Trustee," as used herein, shall
refer to the Senior Indenture Trustee or the Subordinated Indenture Trustee, as
appropriate. The forms of the Senior Indenture and the Subordinated Indenture
(being sometimes referred to herein collectively as the "Indentures" and
individually as an "Indenture") are filed as exhibits to the Registration
Statement and will be respectively available for inspection at the Corporate
Trust Office (as such term is defined in the Indentures) of the Senior Indenture
Trustee and the Subordinated Indenture Trustee, or as described under "Available
Information." The Indentures are subject to, and governed by, the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made hereunder
relating to the Indentures and the Debt Securities are summaries of certain
provisions thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indentures
and the Debt Securities. All section references appearing herein are to sections
of the Indentures, and capitalized terms used but not defined herein have the
respective meanings set forth in the Indentures and the Debt Securities.
TERMS
The Debt Securities will be direct, unsecured obligations of the Company. The
indebtedness represented by the Senior Securities will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The indebtedness
represented by the Subordinated Securities will be subordinated in right of
payment to the prior payment in full of the Senior Debt of the Company, as
described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without limit
as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in one or
more indentures supplemental to such Indenture. Debt Securities may be issued
with terms different from those of Debt Securities previously issued. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
either Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 608 of each Indenture). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the applicable
Indenture separate and apart from the trust administered by any other Trustee
(Sections 101 and 609 of each Indenture), and, except as otherwise indicated
herein, any action described herein to be taken by the Company may be taken by
each such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to the series of Debt
Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities and whether such Debt Securities
are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof, the
portion of the principal amount payable upon declaration of acceleration of the
maturity thereof,
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or (if applicable) the portion of the principal amount of such Debt Securities
that is convertible into Capital Stock of the Company, or the method by which
any such portion will be determined;
(4) if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on the ownership or
transferability of the Capital Stock of the Company into which such Debt
Securities are convertible;
(5) the date or dates, or the method by which such date or dates will
be determined, on which the principal of such Debt Securities will be payable
and the amount of principal payable thereon;
(6) the rate or rates (which may be fixed or variable) at which such
Debt Securities will bear interest, if any, or the method by which such rate or
rates will be determined, the date or dates from which such interest will accrue
or the method by which such date or dates will be determined, the Interest
Payment Dates on which any such interest will be payable and the Regular Record
Dates for such Interest Payment Dates, or the method by which such Dates will be
determined, and the basis upon which interest will be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(7) the place or places where the principal of (and premium or
Make-Whole Amount (as defined in each Indenture), if any), interest, if any, on,
and Additional Amounts, if any, payable in respect of, such Debt Securities will
be payable, where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the Company in
respect of such Debt Securities and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices (including
premium or Make-Whole Amount, if any) at which, the currency or currencies,
currency unit or units or composite currency or currencies in which and other
terms and conditions upon which such Debt Securities may be redeemed in whole or
in part, at the option of the Company, if the Company is to have the option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within
which or the date or dates on which, the price or prices at which, the currency
or currencies, currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which such Debt Securities will be
redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(10) whether such Debt Securities will be in registered or bearer form
and terms and conditions relating thereto, and, if other than $1,000 and any
integral multiple thereof, the denominations in which any registered Debt
Securities will be issuable and, if other than $5,000, the denomination or
denominations in which any bearer Debt Securities will be issuable;
(11) if other than United States dollars, the currency or
currencies in which such Debt Securities will be denominated and payable, which
may be a foreign currency or units of two or more foreign currencies or a
composite currency or currencies;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method (which index,
formula or method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts will be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on such Debt Securities are to
be payable, at the election of the Company or a Holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies other
than that in which such Debt Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or composite currency
or currencies in which
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such Debt Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in which
such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Debt Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form;
(17) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen of the applicable Indenture;
(18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the applicable Indenture on such Debt
Securities in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such Additional Amounts (and the terms of any such option); and
(19) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities") (Section 502 of each Indenture). Special
United States federal income tax, accounting and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of $5,000
(Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Senior Securities will be payable at the corporate trust office of the
Senior Indenture Trustee located at 230 South Tryon Street, Charlotte, North
Carolina 28288 and the principal of (and premium or Make-Whole Amount, if any)
and interest on any series of Subordinated Securities will be payable at the
corporate trust office of the Subordinated Indenture Trustee located at 919 East
Main Street, Richmond, Virginia 23219; provided that at the option of the
Company payment of interest on any series of Debt Securities may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register for such series or by wire transfer of funds to such Person at
an account maintained within the United States (Sections 301, 305, 306, 307 and
1002 of each Indenture).
Any interest not punctually paid or duly provided for on any Interest Payment
Date with respect to a Debt Security ("Defaulted Interest") will forthwith cease
to be payable to the Holder on the applicable Regular Record Date and may either
be paid to the Person in whose name such Debt Security is registered at the
close of business on a special record date (the "Special Record Date") for the
payment of such Defaulted Interest to be fixed by the Company, notice whereof
shall be given to the Holder of such Debt Security not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner, all as more completely described in the applicable Indenture (Section
307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different
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authorized denominations upon surrender of such Debt Securities at the corporate
trust office of the applicable Trustee referred to above. In addition, subject
to certain limitations imposed upon Debt Securities issued in book-entry form,
the Debt Securities of any series may be surrendered for conversion or
registration of transfer thereof at the corporate trust office of the applicable
Trustee referred to above. Every Debt Security surrendered for conversion,
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer. No service charge will be made for any
registration or transfer or exchange of any Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 305 of each Indenture). If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the applicable Trustee) initially designated by the Company with respect to any
series of Debt Securities, the Company may at any time rescind the designation
of any such transfer agent or approve a change in the location through which
such transfer agent acts, except that the Company will be required to maintain a
transfer agent in each Place of Payment for such series. The Company may at any
time designate additional transfer agents with respect to any series of Debt
Securities (Section 1002 of each Indenture).
Neither the Company nor either Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (iii) issue, register the transfer of or exchange any Debt Security
which has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be so repaid (Section 305 of each
Indenture).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other entity,
provided that (a) either the Company shall be the continuing entity, or the
successor entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
assets is a Person organized and existing under the laws of the United States or
any State thereof and shall expressly assume payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the covenants and
conditions contained in each Indenture; (b) immediately after giving effect to
such transaction and treating any indebtedness which becomes an obligation of
the Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion covering such
conditions shall be delivered to the Company (Sections 801 and 803 of each
Indenture).
CERTAIN COVENANTS
SENIOR INDENTURE LIMITATIONS ON INCURRENCE OF DEBT. The Senior Indenture
provides that the Company will not, and will not permit any Subsidiary to, incur
any Debt (as defined below) if, immediately after giving effect to the
incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles is greater than 60% of the sum of (without
duplication) (i) the Company's Total Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Exchange Act, with the Company) prior
to the incurrence of such additional Debt and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce Debt),
by the Company or any Subsidiary since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Debt (Section 1004 of the Senior Indenture). The Subordinated
Indenture does not limit the incurrence of Debt.
In addition to the foregoing limitation on the incurrence of Debt, the Senior
Indenture provides that the Company will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the property of the Company or any
Subsidiary if, immediately after giving effect to the
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incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis which is secured by any mortgage, lien,
charge, pledge, encumbrance or security interest on property of the Company or
any Subsidiary is greater than 40% of the Company's Total Assets (Section 1004
of the Senior Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Senior Indenture provides that the Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service (as defined below) to the Annual Service Charge (as defined below)
for the four consecutive fiscal quarters most recently ended prior to the date
on which such additional Debt is to be incurred shall have been less than 1.5,
on a pro forma basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (i) such Debt and any
other Debt incurred by the Company and its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of such period;
(ii) the repayment or retirement of any other Debt by the Company and its
Subsidiaries since the first day of such four-quarter period had been incurred,
repaid or retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period);
(iii) in the case of Acquired Debt (as defined below) or Debt incurred in
connection with any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation (Section 1004 of the Senior Indenture).
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the time such Person
becomes a Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Service Charge" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt of
the Company and its Subsidiaries and the amount of dividends which are payable
in respect of any Disqualified Stock (as defined below).
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means Funds
from Operations (as defined below) of the Company and its Subsidiaries plus
amounts which have been deducted for interest on Debt of the Company and its
Subsidiaries.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company, or any Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property owned by the
Company or any Subsidiary, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock or (v) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
generally accepted accounting principles to the extent, in the case of items of
indebtedness under (i) through (iii) above, that any such items (other than
letters of credit) would appear as a liability on the
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Company's consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise included,
any obligation of the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of another Person (other than the Company or
any Subsidiary) (it being understood that Debt shall be deemed to be incurred by
the Company or any Subsidiary whenever the Company or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any Capital Stock of
such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (ii)
is convertible into or exchangeable or exercisable for Debt or Disqualified
Stock or (iii) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity of the series of Debt
Securities.
"Funds from Operations" for any period means income before gains (losses) on
investments and extraordinary items plus amounts which have been deducted, and
minus amounts which have been added, for the following items (without
duplication): (a) provision for Preferred Stock dividends, (b) provision for
property depreciation and amortization and (c) the effect of any adjustments for
significant non-recurring items, including any noncash charge resulting from a
change in accounting principles in determining income before gains (losses) on
investments and extraordinary items for such period, as reflected in the
financial statements of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with generally accepted accounting principles (but
excluding intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization determined on a
consolidated basis in accordance with generally accepted accounting principles.
Except as described above, the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford Holders of the Debt Securities protection in the event of a highly
leveraged or similar transaction involving the Company or in the event of a
change of control. However, the Articles of Incorporation of the Company include
provisions for mandatory redemption and stopping transfer of its Common Stock
designed to preserve the Company's status as a REIT. The Code provides that
concentration of more than 50% in value of direct or indirect ownership of
Common Stock in five or fewer individual shareholders during the last six months
of any year will result in disqualification of the Company as a REIT.
Enforcement of the provisions of the Company's Articles of Incorporation would
prevent such concentration and, therefore, prevent or hinder a change of
control. Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described herein,
including any addition of a covenant or other provision providing event risk or
similar protection.
EXISTENCE. Except as described above under "--Merger, Consolidation or Sale,"
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect the existence, rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Debt Securities of any series (Section 1005 of each Indenture).
MAINTENANCE OF PROPERTIES. The Company will cause all of its properties used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company and its Subsidiaries shall not
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be prevented from selling or otherwise disposing of for value their properties
in the ordinary course of business (Section 1006 of each Indenture).
INSURANCE. The Company will, and will cause each of its Subsidiaries to, keep
all of its insurable properties insured against loss or damage in an amount at
least equal to their then full insurable value with financially sound and
reputable insurance companies (Section 1007 of each Indenture).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge or cause
to be paid or discharged, before the same become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon it or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(ii) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings (Section 1008 of each Indenture).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is subject to
Section 13 or 15(d) of the Exchange Act, the Company will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the Commission pursuant to such Section 13 and 15(d) if the Company
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders of Debt Securities, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections and (ii) file with the
Company copies of the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder (Section 1009 of each Indenture).
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest or Additional Amounts
payable on any Debt Security of such series; (b) default in the payment of the
principal of (or premium or Make-Whole Amount, if any, on) any Debt Security of
such series at its Maturity; (c) default in making any sinking fund payment as
required for any Debt Security of such series; (d) default in the performance of
any other covenant of the Company contained in the Indenture (other than a
covenant added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the Indenture; (e) default under any bond,
debenture, note, mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly responsible or
liable as obligor or guarantor) having an aggregate principal amount outstanding
of at least $10,000,000, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such acceleration having been rescinded or
annulled within 10 days after written notice as provided in the Indenture; (f)
the entry by a court of competent jurisdiction of one or more judgments, orders
or decrees against the Company or any Subsidiary in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 and such
judgments, orders or decrees remain undischarged, unstayed and unsatisfied in an
aggregate amount (excluding amounts fully covered by insurance) in excess of
$10,000,000 for a period of 30 consecutive days; (g) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any Significant Subsidiary or for all or
substantially all of either of its property; and (h) any other Event of Default
provided with respect to such series of Debt Securities (Section 501 of each
Indenture). The term "Significant Subsidiary" means each significant subsidiary
(as defined in Regulation S-X promulgated under the Securities Act) of the
Company.
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If an Event of Default under either Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Company or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms thereof) of, and premium or Make-Whole Amount, if any,
on, all of the Debt Securities of that series to be due and payable immediately
by written notice thereof to the Company (and to the Company if given by the
Holders). However, at any time after such declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the Company, the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) the Company shall have
deposited with the Company all required payments of the principal of (and
premium or Make-Whole Amount, if any) and interest, and any Additional Amounts,
on the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the Company and (b) all Events of
Default, other than the nonpayment of accelerated principal (or specified
portion thereof and the premium or Make-Whole Amount, if any) or interest, with
respect to the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in the Indenture (Section 502 of each Indenture). Each
Indenture also provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the case
maybe) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium or Make-Whole Amount, if any) or interest or Additional Amounts payable
on any Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security affected thereby
(Section 513 of each Indenture).
Each Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided, however,
that such Trustee may withhold notice to the Holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts payable on any Debt Security of such series or in
the payment of any sinking fund installment in respect of any Debt Security of
such series) if the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders (Section 601 of each
Indenture).
Each Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to such Indenture
or for any remedy thereunder, except in the case of failure of the Company, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series, as well as
an offer of reasonable indemnity (Section 507 of each Indenture). This provision
will not prevent, however, any Holder of Debt Securities from instituting suit
for the enforcement of payment of the principal of (and premium or Make-Whole
Amount, if any), interest on and Additional Amounts payable with respect to,
such Debt Securities at the respective due dates thereof (Section 508 of each
Indenture).
MODIFICATION OF THE INDENTURES
Modifications and amendments of either Indenture may be made with the consent
of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture that are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any), or any installment of principal of or interest or
Additional Amounts payable on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, or any Additional Amounts payable with respect
to, any such Debt Security, or reduce the amount of principal of an Original
Issue Discount Security or Make-Whole Amount, if any, that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the Holder
of any such Debt Security; (c) change the Place of Payment, or the coin or
currency, for payment of principal of (and premium or Make-Whole Amount, if
any), or interest on, or any Additional Amounts payable with respect to, any
such Debt
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Security; (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Debt Security; (e) reduce the percentage
of Outstanding Debt Securities of any series necessary to modify or amend the
applicable Indenture, to waive compliance with certain provisions thereof or
certain defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture; or (f) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Debt Security
(Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities issued under either Indenture have the right to waive compliance
by the Company with certain covenants in such Indenture (Section 1012 of each
Indenture).
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Debt (Sections 1601 and 1602 of the Subordinated Indenture), but the
obligation of the Company to make payment of the principal and interest on the
Subordinated Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be made on the
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice of
the default (Section 1603 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full, holders
will be subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than holders of the
Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of and
interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of the
Subordinated Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Company for money borrowed or represented by purchase-money
obligations, (b) indebtedness of the Company evidenced by notes, debentures, or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (c) obligations of the Company as lessee
under leases of property either made as part of any sale and leaseback
transaction to which the Company is a party or otherwise, (d) indebtedness of
partnerships and joint ventures that is included in the consolidated financial
statements of the Company, (e) indebtedness, obligations and liabilities of
others in respect of which the Company is liable contingently or otherwise to
pay or advance money or property or as guarantor, endorser or otherwise or which
the Company has agreed to purchase or otherwise acquire, and (f) any binding
commitment of the Company to fund any real estate investment or to fund any
investment in any entity making such real estate investment, in each case other
than (1) any such indebtedness, obligation or liability referred to in clauses
(a) through (f) above as to which, in the instrument creating or evidencing the
same pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment to the
Subordinated Securities or ranks pari passu with the Subordinated Securities,
(2) any such indebtedness, obligation or liability which is subordinated to
indebtedness of the Company to substantially the same extent as or to a greater
extent than the Subordinated Securities are subordinated, and (3) the
Subordinated Securities (Section 101 of the Subordinated Indenture). At April
30, 1996, Senior Debt aggregated approximately $581 million. There are no
restrictions in the Subordinated Indenture upon the creation of additional
Senior Debt. However, the Senior Indenture contains limitations on incurrence of
indebtedness by the Company. See "--Certain Covenants--Senior Indenture
Limitations on Incurrence of Debt."
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not already
been delivered to the applicable Trustee for cancellation and that either have
become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
applicable Trustee, in trust, funds in such currency or currencies, currency
unit or units or composite currency or currencies in which such Debt Securities
are payable in an amount sufficient to pay the entire indebtedness on such
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Debt Securities in respect of principal (and premium or Make-Whole Amount, if
any) and interest and any Additional Amounts payable to the date of such deposit
(if such Debt Securities have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen thereof
are made applicable to the Debt Securities of or within any series pursuant to
Section 301 of such Indenture, the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402 of each Indenture) or (b) to be released from its
obligations with respect to such Debt Securities under provisions of each
Indenture described under "--Certain Covenants," or, if provided pursuant to
Section 301 of each Indenture, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event or Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403 of each Indenture), in either case upon the
irrevocable deposit by the Company with the applicable Trustee, in trust, of an
amount, in such currency or currencies, currency unit or currency units or
composite currency or currencies in which such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium or Make-Whole Amount, if
any) and interest on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company has
delivered to the applicable Trustee an Opinion of Counsel (as specified in each
Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred, and such Opinion of Counsel, in the case of defeasance, must
refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable United States federal income tax laws occurring after the date of
such Indenture (Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct obligations of
the United States of America or the government which issued the Foreign Currency
in which the Debt Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America or the government which issued the Foreign Currency in
which the Debt Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(a) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 301 of either Indenture or the terms of such Debt Security
to receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium or Make-Whole Amount, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit or
composite currency in which such Debt Security becomes payable as a result of
such election or such cessation of usage based on the applicable market exchange
rate (Section 1405 of each Indenture). "Conversion Event" means the cessation of
use of (i) a
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currency, currency unit or composite currency (other than the ECU or other
currency unit) both by the government of the country that issued such currency
and for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it was
established. Unless otherwise provided in the applicable Prospectus Supplement,
all payments of principal of (and premium or Make-Whole Amount, if any) and
interest on any Debt Security that is payable in a Foreign Currency that ceases
to be used by its government of issuance shall be made in United States dollars
(Section 101 of each Indenture).
In the event the Company effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default other than the Event of Default described in
clause (d) under "--Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1009, inclusive, of either Indenture (which Sections would no
longer be applicable to such Debt Securities) or described in clause (g) under "
Events of Default, Notice and Waiver" with respect to a covenant as to which
there has been covenant defeasance, the amount in such currency, currency unit
or composite currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Company, will be sufficient to pay amounts due
on such Debt Securities at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock of the Company will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Capital Stock of the Company,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
BOOK-ENTRY SYSTEM
The Debt Securities of a series may be issued in whole or in part in the form
of one or more global securities ("Global Securities") that will be deposited
with, or on behalf of a depository (the "Depository") identified in the
Prospectus Supplement relating to such series. Global Securities, if any, are
expected be deposited with The Depository Trust Company, as Depository. Global
Securities may be issued in fully registered form and may be issued in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for the individual Debt Securities represented thereby, a Global Security
may not be transferred except as a whole by the Depository for such Global
Security to a nominee of such Depository or by a nominee of such Depository to
such Depository or another nominee of such Depository or by such Depository or
any nominee of such Depository to a successor Depository or any nominee of such
successor.
The specific terms of the depository arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Company expects that unless otherwise indicated in the applicable
Prospectus Supplement the following provisions will apply to depository
arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depository for
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such Global Security or its nominee (with respect to beneficial interests of
Participants) and records of Participants (with respect to beneficial interests
of persons who hold through Participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and laws may impair the ability to own, pledge or
transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable Prospectus
Supplement, owners of beneficial interest in a Global Security will not be
entitled to have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture.
Payments of principal of, any premium or Make-Whole Amount and any interest
on, or any Additional Amounts payable with respect to, individual Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to the Depository or its nominee, as the
case may be, as the registered owner of the Global Security. None of the
Company, the Company, any Paying Agent or the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole Amount,
interest or Additional Amounts in respect of the Global Security representing
such Debt Securities will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers in bearer form or registered in street name. Such payments will be the
responsibility of such Participants.
If a Depository for any Debt Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days, the Company will issue individual Debt Securities
in exchange for the Global Security representing such Debt Securities. In
addition, the Company may at any time and in its sole discretion, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities, determine not to have any of such Debt Securities represented by one
or more Global Securities and in such event will issue individual Debt
Securities in exchange for the Global Security or Securities representing such
Debt Securities. Individual Debt Securities so issued will be issued in
denominations of $1,000 and integral multiples thereof.
TRUSTEES
First Union National Bank of Virginia is the Trustee under the Senior
Indenture. Crestar Bank is the Trustee under the Subordinated Indenture. Both
First Union National Bank of Virginia and Crestar Bank have lending
relationships with the Company.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 100,000,000 shares of Common Stock, $1 par
value, and 25,000,000 shares of Preferred Stock, no par value. At May 6, 1996,
there were outstanding 56,746,288 shares of Common Stock and 4,200,000 shares of
Preferred Stock, consisting exclusively of the Company's 9 1/4% Series A
Cumulative Redeemable Preferred Stock (the "Series A Preferred").
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The following statements with respect to the capital stock of the Company are
subject to the detailed provisions of the Company's Restated Articles of
Incorporation, as amended (the "Articles"), and bylaws (the "Bylaws") as
currently in effect. These statements do not purport to be complete, or to give
full effect to the terms of the provisions of statutory or common law, and are
subject to, and are qualified in their entirety by reference to, the terms of
the Articles and Bylaws, which are filed as exhibits to the Registration
Statement.
COMMON STOCK
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors after payment of, or provision for, full
cumulative dividends on and any required redemptions of shares of Preferred
Stock then outstanding. Holders of Common Stock have one vote per share and
non-cumulative voting rights, which means that holders of more than 50% of the
shares voting can elect all of the directors if they choose to do so, and, in
such event, the holders of the remaining shares will not be able to elect any
directors. In the event of any voluntary or involuntary liquidation or
dissolution of the Company, holders of Common Stock are entitled to share
ratably in the distributable assets of the Company remaining after satisfaction
of the prior preferential rights of the Preferred Stock and the satisfaction of
all debts and liabilities of the Company. Holders of Common Stock do not have
preemptive rights.
The dividend and liquidation rights of holders of the Common Stock are
specifically limited by the terms of the Series A Preferred as described below
in "--Series A Preferred."
The Transfer Agent for the Common Stock is Mellon Securities Trust Company,
Pittsburgh, Pennsylvania. The Common Stock is traded on the New York Stock
Exchange (the "NYSE") under the symbol "UDR."
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Articles of Amendment to the Articles fixing the
preferences, limitations and relative rights of a particular series of Preferred
Stock.
GENERAL. Under the Articles, the Board of Directors of the Company is
authorized, without further shareholder action, to provide for the issuance of
up to 25,000,000 shares of Preferred Stock, in one or more series, with such
voting powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions, as the Board of Directors shall approve.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular series
of Preferred Stock offered thereby for specific terms, including: (i) the title
and liquidation preference per share of such Preferred Stock and the number of
shares offered; (ii) the price at which such series will be issued; (iii) the
dividend rate (or method of calculation), the dates on which dividends shall be
payable and the dates from which dividends shall commence to accumulate; (iv)
any redemption or sinking fund provisions of such series; (v) any conversion
provisions of such series; and (vi) any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges, limitations
and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other series of Preferred
Stock and, in all cases, will be senior to the Common Stock.
DIVIDEND RIGHTS. Holders of Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors, out of assets of
the Company legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Such rate may be fixed or variable or both and may be
cumulative, noncumulative or partially cumulative.
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If the applicable Prospectus Supplement so provides, as long as any shares of
Preferred Stock are outstanding, no dividends will be declared or paid or any
distributions be made on the Common Stock, other than a dividend payable in
Common Stock, unless the accrued dividends on each series of Preferred Stock
have been fully paid or declared and set apart for payment and the Company shall
have set apart all amounts, if any, required to be set apart for all sinking
funds, if any, for each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are not
paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued dividends per share on such series of
Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as described in
the Prospectus Supplement relating to such series, which may be based upon one
or more methods of determination. Different series of Preferred Stock may be
entitled to dividends at different dividend rates or based upon different
methods of determination. Except as provided in the applicable Prospectus
Supplement, no series of Preferred Stock will be entitled to participate in the
earnings or assets of the Company.
RIGHTS UPON LIQUIDATION. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of the assets of the
Company available for distribution to shareholders the amount stated or
determined on the basis set forth in the Prospectus Supplement relating to such
series, which may include accrued dividends, if such liquidation, dissolution or
winding up is involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series) provided
for such series set forth in such Prospectus Supplement, if such liquidation,
dissolution or winding up is voluntary, and on such preferential basis as is set
forth in such Prospectus Supplement. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to Preferred Stock of any series and any other shares of stock of the
Company ranking as to any such distribution on a parity with such series of
Preferred Stock are not paid in full, the holders of Preferred Stock of such
series and of such other shares will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled or on such other basis as is set forth in the
applicable Prospectus Supplement. The rights, if any, of the holders of any
series of Preferred Stock to participate in the assets of the Company remaining
after the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation, dissolution
or winding up of the Company will be described in the Prospectus Supplement
relating to such series.
REDEMPTION. A series of Preferred Stock may be redeemable, in whole or in
part, at the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times, the
redemption prices and for the types of consideration set forth in the Prospectus
Supplement relating to such series. The Prospectus Supplement relating to a
series of Preferred Stock which is subject to mandatory redemption shall specify
the number of shares of such series that shall be redeemed by the Company in
each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to any accrued and unpaid
dividends thereon to the date of redemption.
If, after giving notice of redemption to the holders of a series of Preferred
Stock, the Company deposits with a designated bank funds sufficient to redeem
such Preferred Stock, then from and after such deposit, all shares called for
redemption will no longer be outstanding for any purpose, other than the right
to receive the redemption price and the right to convert such shares into other
classes of capital stock of the Company. The redemption price will be stated in
the Prospectus Supplement relating to a particular series of Preferred Stock.
Except as indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of the holder.
SINKING FUND. The Prospectus Supplement for any series of Preferred Stock
will state the terms, if any, of a sinking fund for the purchase or redemption
of that series.
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CONVERSION RIGHTS. The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, on which shares of that series are
convertible into shares of Common Stock or another series of Preferred Stock.
The Preferred Stock will have no preemptive rights.
VOTING RIGHTS. Except as indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
Virginia law, a holder of Preferred Stock will not be entitled to vote. Except
as indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, in the event the Company issues full shares of any series of
Preferred Stock, each such share will be entitled to one vote on matters on
which holders of such series of Preferred Stock are entitled to vote.
Under Virginia law, the affirmative vote of the holders of a majority of the
outstanding shares of all series of Preferred Stock, voting as a separate voting
group, will be required for (i) the authorization of any class of stock ranking
prior to or on parity with Preferred Stock or the increase in the number of
authorized shares of any such stock, (ii) any increase in the number of
authorized shares of Preferred Stock and (iii) certain amendments to the
Articles that may be adverse to the rights of Preferred Stock outstanding.
TRANSFER AGENT AND REGISTRAR. The transfer agent, registrar and dividend
disbursement agent for a series of Preferred Stock will be selected by the
Company and be described in the applicable Prospectus Supplement. The registrar
for shares of Preferred Stock will send notices to shareholders of any meetings
at which holders of Preferred Stock have the right to vote on any matter.
SERIES A PREFERRED
The Board of Directors has designated 4,600,000 shares of Preferred Stock as
the "9 1/4% Series A Cumulative Redeemable Preferred Stock." At April 15, 1996,
there were 4,200,000 shares of Series A Preferred outstanding. The Board of
Directors may redesignate any unissued shares of Series A Preferred as all or a
part of a different series of Preferred Stock. Holders of shares of Series A
Preferred are entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
cumulative preferential cash dividends at the rate of 9 1/4% of the liquidation
preference per annum (equivalent to $2.3125 per share). In the event of any
liquidation, dissolution or winding up of the Company, the holders of shares of
Series A Preferred are entitled to be paid out of the assets of the Company
legally available for distribution to its stockholders a liquidation preference
of $25.00 per share, plus an amount equal to any accrued and unpaid dividends to
the date of payment, before any distribution of assets is made to holders of
Common Stock or any other capital stock that ranks junior to the Series A
Preferred as to liquidation rights. The Series A Preferred is not redeemable
prior to April 24, 2000. On and after April 24, 2000, the Company, at its option
upon not less than 30 nor more than 60 days' written notice, may redeem shares
of the Series A Preferred, in whole or in part, at any time or from time to
time, for cash at a redemption price of $25.00 per share, plus accrued
dividends. The Series A Preferred has no stated maturity and will not be subject
to any sinking fund or mandatory redemption (except as provided under
"Description of Capital Stock--Redemption and Restrictions on Transfer").
The transfer agent, registrar and dividend disbursing agent for the Series A
Preferred is Mellon Securities Trust Company, Pittsburgh, Pennsylvania. The
Series A Preferred is traded on the NYSE under the symbol "UDR-PRA."
DIVIDEND RESTRICTIONS
Covenants in its loan agreements with certain lenders restrict the payment of
distributions in excess of the sum of (i) current "cash flow," (ii) varying
additional amounts and (iii) the proceeds of capital stock offerings subsequent
to various dates, all as defined in the particular loan agreement. The covenants
do not prohibit the Company from paying distributions in order to continue its
qualification as a REIT under the Code.
AFFILIATED TRANSACTIONS
The Virginia Stock Corporation Act contains provisions governing "Affiliated
Transactions" designed to deter uninvited takeovers of Virginia corporations.
These provisions, with several exceptions discussed below, require approval of
material
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acquisition transactions between a Virginia corporation and any holder of more
than 10% of any class of its outstanding voting shares (an "Interested
Shareholder") by the holders of at least two-thirds of the remaining voting
shares. For three years following the time that the Interested Shareholder
becomes an owner of 10% of the outstanding voting shares, Virginia corporations
cannot engage in an Affiliated Transaction with such Interested Shareholder
without approval of two-thirds of the voting shares other than those shares
beneficially owned by the Interested Shareholder, and majority approval of the
"Disinterested Directors." At the expiration of the three year period, the
statute requires approval of Affiliated Transactions by two-thirds of the voting
shares other than those beneficially owned by the Interested Shareholder absent
an exception. The principal exceptions to the special voting requirement apply
to transactions proposed after the three year period has expired and require
either that the transaction be approved by a majority of the corporation's
Disinterested Directors or that the transaction satisfy the fair-price
requirements of the law.
The Virginia Stock Corporation Act also provides that shares acquired in a
transaction that would cause the acquiring person's voting strength to cross any
of three thresholds (20%, 33%, or 50%) have no voting rights unless granted by a
majority vote of shares not owned by the acquiring person or any officer or
employee-director of the Company. An acquiring person may require the Company to
hold a special meeting of shareholders to consider the matter within 50 days of
its request.
REDEMPTION AND RESTRICTIONS ON TRANSFER
In order to preserve the Company's status as a REIT as defined in the Code,
the Company can redeem or stop the transfer of its shares. The Articles provide
that the Company is organized to qualify as a REIT. Because the Code provides
that the concentration of more than 50% in value of the direct or indirect
ownership of its shares in five or fewer individual shareholders during the last
six months of any year would result in the disqualification of the Company as a
REIT, the Articles provide that the Company shall have the power (i) to redeem
that number of concentrated shares sufficient in the opinion of the Board of
Directors of the Company to maintain or bring the direct or indirect ownership
of shares into conformity with the requirements of the Code, and (ii) to stop
the transfer of shares to any person whose acquisition thereof would, in the
opinion of the Company's Board of Directors, result in such disqualification.
The per share redemption price of any shares redeemed by the Company pursuant to
this provision shall be the last reported sale price for the shares as of the
business day preceding the day on which notice of redemption is given. The Board
of Directors of the Company can require shareholders to disclose in writing to
the Company such information with respect to ownership of its shares as it deems
necessary to comply with the REIT provisions of the Code.
REIT QUALIFICATION
The Company operates in a manner intended to qualify for treatment as a REIT
under the Code. In general, a REIT which distributes to its shareholders at
least 95% of its taxable income (other than net capital gain) for a taxable year
and which meets certain other conditions will not be subject to federal income
taxation on income (including net capital gain) distributed for that year. If
the Company fails to qualify in any taxable year, it will be taxed for federal
income tax purposes as a corporation for that year and distributions to
shareholders will not be deductible by the Company in computing its taxable
income. Under such circumstances, the Company also will be disqualified from
being treated as a REIT under the Code for the ensuing four fiscal years.
Failure to qualify could result in the Company's incurring indebtedness and
perhaps liquidating investments in order to pay the resultant taxes.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities to or through underwriters or may
sell Offered Securities to investors directly or through designated agents. Any
such underwriter or agent involved in the offer and sale of the Offered
Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company also may, from time to time, authorize
underwriters acting as agents to offer and sell the Offered Securities upon the
terms and conditions set forth in any Prospectus Supplement. In connection with
the sale of Offered Securities, underwriters may be deemed to have received
compensation from the Company in the form of underwriting discounts or
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commissions and may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions (which may be changed from
time to time) from the underwriters and/or from the purchasers for whom they may
act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities and any discounts,
concessions or commissions allowed by underwriters to participating dealers will
be set forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Company, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Offered Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the principal amount of Offered Securities sold
pursuant to Contracts shall not be less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with which Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the Offered Securities covered by its
Contract shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject and (ii)
the Company shall have sold to such underwriters the total principal amount of
the Offered Securities less the principal amount thereof covered by Contracts. A
commission indicated in the Prospectus Supplement will be paid to agents and
underwriters soliciting purchases of Offered Securities pursuant to Contracts
accepted by the Company. Agents and underwriters shall have no responsibility in
respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of, engage
in transactions with, and perform services for, the Company in the ordinary
course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon for the Company by
Hunton & Williams, Richmond, Virginia. Brown & Wood, New York, New York, will
act as counsel to any underwriters, dealers or agents.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in its annual report on Form 10-K for the year ended December 31, 1995
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The combined statement of rental operations of Brittingham Square Apartments,
The Greens at Cedar Chase Apartments, The Greens at Cross Court Apartments, The
Greens at Falls Run Apartments, The Greens at Hilton Run Apartments, The Greens
at Hollymead Apartments, The Greens at Schumaker Pond Apartments, The Greens of
Constant Friendship Apartments and The Manor at England Run Apartments, included
in the Company's Current Report on Form 8-K, dated June 30, 1995, incorporated
by reference herein, has been incorporated herein in reliance upon the report
dated May 24, 1995, of L. P. Martin & Company, P.C., independent auditors, also
incorporated by reference herein, and upon the authority of such firm as experts
in accounting and auditing. The statements of rental operations of Hunters Ridge
at Walden Lake Apartments, Marble Hill Apartments, Mallards of Wedgewood
Apartments and Andover Place Apartments, included in the Company's current
report on Form 8-K, dated December 28, 1995, incorporated by reference herein,
have been incorporated herein in reliance upon the reports respectively dated
November 21, December 5, December 6 and December 7, 1995, of L.P. Martin
21
<PAGE>
& Company, P.C., independent auditors, also incorporated by reference herein,
and upon the authority of such firm as experts in accounting and auditing.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee... $ 80,000
Accounting fees and expenses.......................... 150,000
Blue Sky fees and expenses............................ 45,000
Legal fees and expenses............................... 170,000
Trustees' fees and expenses........................... 30,000
Rating agency fees.................................... 100,000
Printing.............................................. 75,000
Miscellaneous......................................... 50,000
--------
TOTAL.......................................... $700,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Directors and officers of the Company may be indemnified against liabilities,
fines, penalties, and claims imposed upon or asserted against them as provided
in the Virginia Stock Corporation Act and the Articles of Incorporation. Such
indemnification covers all costs and expenses reasonably incurred by a director
or officer. The Board of Directors, by a majority vote of a quorum of
disinterested directors or, under certain circumstances, independent counsel
appointed by the Board of Directors, must determine that the director or officer
seeking indemnification was not guilty of willful misconduct or a knowing
violation of the criminal law. In addition, the Virginia Stock Corporation Act
and the Company's Articles of Incorporation may under certain circumstances
eliminate the liability of directors and officers in a shareholder or derivative
proceeding.
If the person involved is not a director or officer of the Company, the Board
of Directors may cause the Company to indemnify to the same extent allowed for
directors and officers of the Company such person who was or is a party to a
proceeding, by reason of the fact that he is or was an employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
ITEM 16. EXHIBITS
1 (a) - Form of Underwriting Agreement for Debt Securities*
1 (b) - Form of Underwriting Agreement for Preferred Stock and Common
Stock*
4(i)(a) - Specimen Common Stock certificate (filed as Exhibit 4(i) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10524), and incorporated by
reference herein)
4(i)(b) Form of Preferred Stock certificate (filed as Exhibit 4(i)(b)
to the Company's Form S-3 Registration Statement (File No.
33-55159) filed with the Commission on August 19, 1994, and
incorporated by reference herein)
4 (i)(b)(1) - Form of certificate for 9 1/4% Series A Cumulative Redeemable
Preferred Stock (filed as Exhibit 1(e) to the Company's Form
8-A Registration Statement dated April 24, 1995 (File No.
1-10524), and incorporated by reference herein)
4 (i)(c) - Restated Articles of Incorporation*
II-1
<PAGE>
4(i)(e) - Bylaws (filed as Exhibit 4(c) to the Company's Form S-3
Registration Statement (Registration No. 33-44743) filed with
the Commission on December 31, 1991, and incorporated by
reference herein)
4(i)(e)(1)- Amendment to Bylaws (filed as Exhibit 3(b)(ii) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
(File No. 1-10524), and incorporated by reference herein)
4(i)(h) - Loan Agreement dated as of November 7, 1991, between the
Company and Aid Association for Lutherans (filed as Exhibit
6(c)(1) to the Company's Form 8-A Registration Statement dated
April 19, 1990 (File No. 1-10524), and incorporated by
reference herein)
4(i)(i) - Note Purchase Agreement dated as of February 19, 1992, between
the Company and Principal Mutual Life Insurance Company (filed
as Exhibit 6(c)(3) to the Company's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4(i)(j) - Note Purchase Agreement dated as of January 15, 1993, between
the Company and CIGNA Property and Casualty Insurance Company,
Connecticut General Life Insurance Company, Connecticut General
Life Insurance Company, on behalf of one or more separate
accounts, Insurance Company of North America, Principal Mutual
Life Insurance Company and Aid Association for Lutherans (filed
as Exhibit 6(c)(5) to the Company's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4(i)(k) - Credit Agreement dated as of December 15, 1994, between the
Company and First Union National Bank of Virginia (filed as
Exhibit 6(c)(6) to the Company's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4 (i)(l) - Form of Senior Indenture dated as of November 1, 1995, between
the Company and First Union National Bank of Virginia, as
Trustee*
4(i)(m) - Form of Subordinated Indenture dated as of August 1, 1994,
between the Company and Crestar Bank, as Trustee*
4 (i)(n) - Form of Senior Security*
4(i)(o) - Form of Subordinated Security (filed as Exhibit 4(i)(p) to the
Company's Form S-3 Registration Statement (File No. 33-55159)
filed with the Commission on August 19, 1994, and incorporated
by reference herein)
5 - Opinion of Hunton & Williams*
12 - Statement regarding computation of ratios (filed as Exhibit 12
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-10524), and incorporated by
reference herein)
23 (a) - Consent of Ernst & Young LLP
23 (b) - Consent of L. P. Martin & Company, P.C.
23 (c) - Consent of Hunton & Williams (included in Exhibit 5)*
24 - Power of Attorney*
25 (a) - Statement of Eligibility and Qualification on Form T-1 of First
Union National Bank of Virginia, as Trustee under the Senior
Indenture and as Successor Trustee under the Senior Indenture
dated as of April 1, 1994, between the Company and NationsBank
of Virginia, N.A., as Trustee, under the Trust Indenture Act of
1939*
II-2
<PAGE>
25(b) - Statement of Eligibility and Qualification on Form T-1 of
Crestar Bank, as Trustee under the Subordinated Indenture,
under the Trust Indenture Act of 1939*
- ------------------
* Previously filed
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this registration
statement (i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; provided, however, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that the
undertakings set forth in subparagraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that the in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
II-3
<PAGE>
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for
purposes of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Richmond, Commonwealth of Virginia on the 20th
day of May, 1996.
UNITED DOMINION REALTY TRUST, INC.
By /s/ James Dolphin
---------------------------------
James Dolphin
Senior Vice President and
Chief Financial Officer
Signature Title & Capacity
/s/ John P. McCann* President, Chief Executive Officer (Principal
-------------------------- Executive Officer) and Director
John P. McCann
/s/ James Dolphin Senior Vice President, Chief Financial
-------------------------- Officer, (Principal Financial and
James Dolphin Accounting Officer) and Director
-------------------------- Director
Jeff C. Bane
/s/ Robert P. Buford*
--------------------------- Director
Robert P. Buford
/s/ R. Toms Dalton, Jr.* Director
---------------------------
R. Toms Dalton, Jr.
/s/ Barry M. Kornblau* Director
---------------------------
Barry M. Kornblau
---------------------------
John C. Lanford Director
---------------------------
H. Franklin Minor Director
/s/ C. Harmon Williams, Jr.* Director
---------------------------
C. Harmon Williams, Jr.
*By /s/ James Dolphin
-----------------------
James Dolphin
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
1 (a) - Form of Underwriting Agreement for Debt Securities*
1 (b) - Form of Underwriting Agreement for Preferred Stock and Common
Stock*
4(i)(a) - Specimen Common Stock certificate (filed as Exhibit 4(i) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-10524), and incorporated by
reference herein)
4(i)(b) Form of Preferred Stock certificate (filed as Exhibit 4(i)(b)
to the Company's Form S-3 Registration Statement (File No.
33-55159) filed with the Commission on August 19, 1994, and
incorporated by reference herein)
4 (i)(b)(1) - Form of certificate for 9 1/4% Series A Cumulative Redeemable
Preferred Stock (filed as Exhibit 1(e) to the Company's Form
8-A Registration Statement dated April 24, 1995 (File No.
1-10524), and incorporated by reference herein)
4 (i)(c) - Restated Articles of Incorporation*
4(i)(e) - Bylaws (filed as Exhibit 4(c) to the Company's Form S-3
Registration Statement (Registration No. 33-44743) filed with
the Commission on December 31, 1991, and incorporated by
reference herein)
4(i)(e)(1)- Amendment to Bylaws (filed as Exhibit 3(b)(ii) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 1-10524), and incorporated by
reference herein)
4(i)(h) - Loan Agreement dated as of November 7, 1991, between the
Company and Aid Association for Lutherans (filed as Exhibit
6(c)(1) to the Company's Form 8-A Registration Statement dated
April 19, 1990 (File No. 1-10524), and incorporated by
reference herein)
4(i)(i) - Note Purchase Agreement dated as of February 19, 1992, between
the Company and Principal Mutual Life Insurance Company (filed
as Exhibit 6(c)(3) to the Company's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4(i)(j)- Note Purchase Agreement dated as of January 15, 1993, between
the Company and CIGNA Property and Casualty Insurance Company,
Connecticut General Life Insurance Company, Connecticut
General Life Insurance Company, on behalf of one or more
separate accounts, Insurance Company of North America,
Principal Mutual Life Insurance Company and Aid Association
for Lutherans (filed as Exhibit 6(c)(5) to the Company's Form
8-A Registration Statement dated April 19, 1990 (File No.
1-10524), and incorporated by reference herein)
4(i)(k) - Credit Agreement dated as of December 15, 1994, between the
Company and First Union National Bank of Virginia (filed as
Exhibit 6(c)(6) to the Company's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4(i)(l) - Form of Senior Indenture dated as of November 1, 1995, between
the Company and First Union National Bank of Virginia, as
Trustee*
4(i)(m) - Form of Subordinated Indenture dated as of August 1, 1994,
between the Company and Crestar Bank, as Trustee*
4(i)(n) - Form of Senior Security*
II-6
<PAGE>
4(i)(o) - Form of Subordinated Security (filed as Exhibit 4(i)(p) to the
Company's Form S-3 Registration Statement (File No. 33-55159)
filed with the Commission on August 19, 1994, and incorporated
by reference herein)
5 - Opinion of Hunton & Williams*
12 - Statement regarding computation of ratios (filed as Exhibit 12
to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1-10524), and incorporated
by reference herein)
23 (a) - Consent of Ernst & Young LLP
23 (b) - Consent of L. P. Martin & Company, P.C.
23 (c) - Consent of Hunton & Williams (included in Exhibit 5)*
24 - Power of Attorney*
25 (a) - Statement of Eligibility and Qualification on Form T-1 of
First Union National Bank of Virginia, as Trustee under the
Senior Indenture and as Successor Trustee under the Senior
Indenture dated as of April 1, 1994, between the Company and
NationsBank of Virginia, N.A., as Trustee, under the Trust
Indenture Act of 1939*
25(b) - Statement of Eligibility and Qualification on Form T-1 of
Crestar Bank, as Trustee under the Subordinated Indenture,
under the Trust Indenture Act of 1939*
- ------------------
* Previously filed
II-7
Exhibit 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 33-64275) and related
Prospectus of United Dominion Realty Trust, Inc. for the registration of debt
securities, preferred stock, and common stock with a proposed maximum aggregate
offering price of $462,312,500 and to the incorporation by reference therein of
our report dated January 25, 1996, with respect to the consolidated financial
statements and schedule of United Dominion Realty Trust, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Richmond, Virginia
May 20, 1996
[L.P. MARTIN & COMPANY Letterhead]
EXHIBIT 23(b)
CONSENT OF L.P. MARTIN & COMPANY, P.C., INDEPENDENT AUDITORS
We consent to the reference our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 33-64275) and related
Prospectus of United Dominion Realty Trust, Inc. for the registration of debt
securities, preferred stock, and common stock with a proposed maximum aggregate
offering price of $462,312,500 and to the incorporation by reference therein of
(a) our reports dated May 24, 1995 with respect to the combined statement of
rental operations of Brittingham Square Apartments, The Greens at Cedar Chase
Apartments, The Greens at Cross Court Apartments, The Greens at Falls Run
Apartments, The Greens at Hilton Run Apartments, The Greens at Hollymead
Apartments, The Greens at Schumaker Pond Apartments, The Greens of Constant
Friendship Apartments and The Manor at England Run Apartments, included in
United Dominion Realty Trust's Current Report on form 8-K dated June 30, 1995
for the year ended December 31, 1994, filed with the Securities and Exchange
Commission and (b) our report dated November 21, 1995, with respect to the
statement of rental operations of Hunters Ridge at Walden Lake Apartments, our
report dated December 5, 1995 with respect to the statement of rental operations
of Marble Hill Apartments, our report dated December 6, 1995, with respect to
the statement of rental operations of Mallards of Wedgewood Apartments, and our
report dated December 7, 1995, with respect to the statement of rental
operations of Andover Place Apartments, included in United Dominion Realty
Trust's Current Report of Form 8-K dated December 28, 1995 for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
/s/ L.P. MARTIN & COMPANY, P.C.
L.P. Martin & Company, P.C.
Certified Public Accountants
Richmond, Virginia
May 17, 1996
