As filed with the Securities and Exchange Commission on February 18, 1998
Registration No. 333-45305
- - - - --------------------------------------------------------------------------------
- - - - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Post-Effective
Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
United Dominion Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
---------------
<TABLE>
<CAPTION>
Virginia 6513 54-0857512
<S> <C> <C>
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
10 South Sixth Street
Richmond, Virginia 23219-3802
(804) 780-2691
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------
Katheryn E. Surface
United Dominion Realty Trust, Inc.
10 South Sixth 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:
<TABLE>
<S> <C> <C>
James W. Featherstone, III Robert S. Kant Jay L. Bernstein
Hunton & Williams O'Connor, Cavanagh, Anderson, Rogers & Wells LLP
951 East Byrd Street Killingsworth & Beashears, P.A. 200 Park Avenue
Richmond, Virginia 23219-4074 One East Camelback Road, Suite 1100 New York, NY 10166
Phoenix, Arizona 85012-1656
</TABLE>
---------------
This post-effective amendment to the registration statement is filed solely to
add exhibits and pursuant to Rule 462(d) shall become effective upon filing.
- - - - --------------------------------------------------------------------------------
- - - - --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 21. Exhibits and Financial Statement Schedules
<TABLE>
<CAPTION>
Exhibit
- - - - ----------------
<S> <C>
2(a) Agreement and Plan of Merger dated as of December 19, 1997, between United Dominion, Sub and
ASR (Appendix I to Proxy Statement/Prospectus)
2(b) Agreement and Plan of Merger dated as of October 1, 1996, between United Dominion, United Sub,
Inc., and South West Property Trust Inc. (filed as Exhibit 2(a) to United Dominion's Form S-4
Registration Statement, filed with the Commission on October 9, 1996 (File No. 333-13745), and
incorporated by reference herein)
4(a) Restated Articles of Incorporation of United Dominion (filed as Exhibit 4(b) to United Dominion's
Form S-3 Registration Statement, filed with the Commission on January 16, 1998 (File No.
333-44463), and incorporated by reference herein)
4(a)(i) Amendment of Articles of Incorporation of United Dominion (filed as Exhibit 3 to United
Dominion's Form 8-A Registraton Statement dated February 4, 1998 (FIle No. 1-10524), and
incorporated by reference herein)
4(b) Restated Bylaws of United Dominion (filed as Exhibit 3(b) to United Dominion's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1997 (File No. 1-10524), and incorporated by
reference herein)
4(c) Specimen United Dominion Common Stock certificate (filed as Exhibit 4(i) to United Dominion's
Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-10524), and
incorporated by reference herein)
4(d) Loan Agreement dated as of November 7, 1991, between United Dominion and Aid Association for
Lutherans (filed as Exhibit 6(c)(1) to United Dominion's Form 8-A Registration Statement dated
April 19, 1990 (File No. 1-10524), and incorporated by reference herein)
4(e) Note Purchase Agreement dated as of January 15, 1993, between United Dominion 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 United Dominion's Form 8-A Registration
Statement dated April 19, 1990 (File No. 1-10524), and incorporated by reference herein)
4(f) Rights Agreement, dated as of January 27, 1998, between United Dominion and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (filed as Exhibit 1 to United Dominion's Form 8-A
Registration Statement dated February 4, 1998 (file No. 1-10524) and incorporated by reference
herein)
4(g) Form of Rights Certificate (included in Exhibit 4(f))
5 Opinion of Hunton & Williams (previously filed)
8(a) Opinions of Hunton & Williams regarding certain federal income tax matters
8(b) Opinion of Rogers & Wells LLP regarding certain federal income tax matters
8(c) Opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A., regarding certain federal
income tax matters
23(a) Consent of Ernst & Young LLP -- Richmond, Virginia (previously filed)
23(b) Consent of Ernst & Young LLP -- Dallas, Texas (previously filed)
23(c) Consent of L.P. Martin & Company, P.C. (previously filed)
23(d) Consent of Deloitte & Touche LLP (previously filed)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
- - - - -----------
<S> <C>
23(e) Consent of Hunton & Williams (included in Exhibits 5 and 8(a))
23(f) Consent of Rogers & Wells LLP (included in Exhibit 8(b))
23(g) Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A. (previously filed and
included in Exhibit 8(c))
23(h) Consent of Furman Selz LLC (included in Appendix II to the Proxy Statement/Prospectus)
25 Powers of Attorney (included on signature page of registration statement as originally filed)
99 Form of ASR proxy (previously filed)
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this post-effective 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 18 day of February, 1998.
UNITED DOMINION REALTY TRUST, INC.
By: /s/ JOHN P. MCCANN
--------------------------------
John P. McCann
Chairman of the Board, President
and Chief Executive Officer
II-2
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to the registration statement has been signed by the
following persons in the capacities indicated on February 18, 1998.
<TABLE>
<CAPTION>
Signature Title & Capacity
- - - - --------------------------------------- ----------------------------------------------------
<S> <C>
/s/ JOHN P. MCCANN Chairman of the Board, President, Chief Executive
- - - - ------------------------------------- Officer) (Principal Executive Officer) and
John P. McCann Director
/s/ JAMES DOLPHIN* Executive Vice President, Chief Financial Officer
- - - - ------------------------------------- (Principal Financial Officer) and Director
James Dolphin
/s/ JERRY A. DAVIS* Vice President and Controller (Principal Accounting
- - - - ------------------------------------- Officer)
Jerry A. Davis
/s/ JOHN S.SCHNEIDER* Vice Chairman of the Board, Executive Vice
- - - - ------------------------------------- President and Director
John S. Schneider
/s/ JEFF C. BANE* Director
- - - - -------------------------------------
Jeff C. Bane
Director
- - - - -------------------------------------
R. Toms Dalton, Jr.
/s/ BARRY M. KORNBLAU* Director
- - - - -------------------------------------
Barry M. Kornblau
Director
- - - - -------------------------------------
John C. Lanford
/s/ H. FRANKLIN MINOR* Director
- - - - -------------------------------------
H. Franklin Minor
Director
- - - - -------------------------------------
Lynne B. Sagalyn
Director
- - - - -------------------------------------
Mark J. Sandler
Director
- - - - -------------------------------------
Robert W. Scharar
/s/ C. HARMON WILLIAMS, JR.* Director
- - - - -------------------------------------
C. Harmon Williams, Jr.
</TABLE>
*By: /s/ KATHERYN E. SURFACE
-------------------------
Katheryn E. Surface
Attorney-in-Fact
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
- - - - ---------------- -----
<S> <C> <C>
2(a) Agreement and Plan of Merger dated as of December 19, 1997, between United
Dominion, Sub and ASR (Appendix I to Proxy Statement/Prospectus)
2(b) Agreement and Plan of Merger dated as of October 1, 1996, between United
Dominion, United Sub, Inc., and South West Property Trust Inc. (incorporated by
reference)
4(a) Restated Articles of Incorporation of United Dominion (incorporated by reference)
4(a)(i) Amendment of Articles of Incorporation of United Dominion (incorporated by
reference)
4(b) Restated Bylaws of United Dominion (incorporated by reference)
4(c) Specimen United Dominion Common Stock certificate (incorporated by reference)
4(d) Loan Agreement dated as of November 7, 1991, between United Dominion and Aid
Association for Lutherans (incorporated by reference)
4(e) Note Purchase Agreement dated as of January 15, 1993, between United Dominion
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 (incorporated by
reference)
4(f) Right, Agreement dated as of January 27, 1998, between United Dominion and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent (incorporated by
reference)
4(g) Form of Rights Certificate (included in Exhibit 4(f))
5 Opinion of Hunton & Williams (previously filed)
8(a) Opinions of Hunton & Williams regarding certain federal income tax matters
8(b) Opinion of Rogers & Wells LLP regarding certain federal income tax matters
8(c) Opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.,
regarding certain federal income tax matters
23(a) Consent of Ernst & Young LLP -- Richmond, Virginia (previously filed)
23(b) Consent of Ernst & Young LLP -- Dallas, Texas (previously filed)
23(c) Consent of L.P. Martin & Company, P.C. (previously filed)
23(d) Consent of Deloitte & Touche LLP (previously filed)
23(e) Consent of Hunton & Williams (included in Exhibits 5 and 8(a))
23(f) Consent of Rogers & Wells LLP (included in Exhibit 8(b))
23(g) Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.
(previously filed and included in Exhibit 8(c))
23(h) Consent of Furman Selz LLC (included in Appendix II) to the Proxy Statement/
Prospectus) (previously filed)
25 Powers of Attorney (included on signature page of registration statement as
originally filed)
99 Form of ASR proxy (previously filed)
</TABLE>
Exhibit 8(a)
February 17, 1998
ASR Investments Corporation
335 North Wilmot, Suite 250
Tucson, Arizona 85711
Merger of ASR Acquisition Sub, Inc.
Into ASR Investments Corporation
Certain Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as counsel to United Dominion Realty Trust,
Inc., a Virginia corporation ("United Dominion"), in connection with the
proposed merger (the "Merger") of ASR Acquisition Sub, Inc., a Maryland
corporation and wholly-owned subsidiary of United Dominion ("ASR Sub"), into ASR
Investments Corporation, a Maryland corporation ("ASR"). You have requested our
opinion concerning certain federal income tax consequences of the Merger.
The only ASR stock outstanding is common stock. In the Merger,
each share of ASR common stock will be exchanged for the right to receive 1.575
shares of United Dominion common stock, subject to adjustment in certain
circumstances. Any ASR stockholder who otherwise would be entitled to a
fractional share of United Dominion common stock as a result of the Merger will
receive cash from United Dominion in lieu of the fractional share. ASR
stockholders are not entitled to dissenters' rights with respect to the Merger.
Each outstanding option to purchase shares of ASR common stock will be assumed
by United Dominion and will become an option to acquire shares of United
Dominion common stock, except for 2,000 ASR common stock options that ASR will
purchase immediately before the Merger. Each share of ASR Sub common stock will
be exchanged for one share of ASR common stock, thereby making ASR a
wholly-owned subsidiary of United Dominion.
In giving this opinion, we have examined (i) the Agreement and
Plan of Merger, dated as of December 19, 1997 (the "Merger Agreement"), among
United Dominion, ASR, and ASR Sub, (ii) the Registration Statement on Form S-4
under the Securities Act of 1933, as amended (the "1933 Act"), relating to the
Merger (the "S-4"), and (iii) such other documents as we have considered
necessary. In addition, we have assumed that:
1. ASR qualifies, and will continue to qualify up to the effective time
of the Merger, as a REIT. This means, among other things, that ASR will satisfy
the distribution requirements of section 857(a)(1) of the Internal Revenue Code
of 1986, as amended (the "Code"), for its taxable year ending on the effective
date of the Merger.
2. The fair market value of the United Dominion common stock (including
any fractional share interest) received by an ASR stockholder in exchange for
ASR common stock in the Merger will be approximately equal to the fair market
value of the ASR common stock surrendered in the exchange.
3. None of the compensation received by any stockholder-employee of ASR
will be separate compensation for, or allocable to, any shares of ASR common
stock; none of the United Dominion common stock received by any
stockholder-employee of ASR will be separate consideration for, or allocable to,
any employment agreement; and the compensation paid to any stockholder-employee
of ASR will be for services actually rendered or pursuant to existing employment
agreements and will be commensurate with amounts paid to third parties
bargaining at arm's length for similar services.
4. The payment of cash in lieu of fractional shares of United Dominion
common stock is solely for the purpose of avoiding the expense and inconvenience
to United Dominion of issuing fractional shares and does not represent
separately bargained-for consideration. The total cash consideration that will
be paid in the Merger to ASR stockholders in lieu of fractional shares of United
Dominion common stock will not exceed one percent of the total consideration
that will be issued in the Merger to the ASR stockholders in exchange for their
ASR common stock.
5. Immediately following the Merger, ASR will hold at least 90% of the
fair market value of the net assets and at least 70% of the fair market value of
the gross assets held by ASR immediately prior to the Merger. For this purpose,
assets of ASR held immediately prior to the Merger are deemed to include (a)
amounts paid or payable for expenses incurred by ASR in connection with the
Merger, including (without limitation) amounts paid or payable by ASR to
purchase ASR stock options, to terminate ASR employment agreements, to cancel
ASR dividend equivalent rights, to satisfy ASR stock appreciation rights, and
for additional fees to ASR directors, and (b) all redemptions and distributions
made by ASR in connection with the Merger (excluding any distributions made by
ASR pursuant to section 2.2(d)(i) of the Merger Agreement to the extent such
distributions, in the aggregate, do not exceed the greater of (i) ASR's "real
estate investment trust taxable income" for its short taxable year ending on the
effective date of the Merger or (ii) the distributions that ASR would have made
for the same period based on its distribution rate for 1997).
6. United Dominion has no plan or intention to reacquire any of its
stock issued in the Merger or to make an extraordinary distribution with respect
to such stock.
7. Following the Merger, United Dominion (through ASR) will continue
the historic business of ASR or use a significant portion of ASR's historic
business assets in a business.
8. There is no indebtedness existing between (a) ASR, ASR Heritage
Communities L.P. (the "ASR Operating Partnership"), or any subsidiary of either
of the foregoing, on the one hand, and (b) United Dominion, ASR Sub, United
Dominion Realty, L.P. (the "UDRT Operating Partnership"), or any subsidiary of
the foregoing, on the other hand.
9. Neither United Dominion, the UDRT Operating Partnership, nor any
subsidiary of the foregoing (a) has transferred or will transfer cash or other
property to ASR, the ASR Operating Partnership, or any subsidiary of the
foregoing in anticipation of the Merger or (b) has made or will make any loan to
ASR, the ASR Operating Partnership, or any subsidiary of the foregoing in
anticipation of the Merger.
10. There is no plan or intention to sell or otherwise dispose of any
of the assets of ASR, except for (a) dispositions made in the ordinary course of
business, (b) the possible transfer of selected ASR assets to a Qualified REIT
Subsidiary of United Dominion, (c) the possible transfer of assets of the ASR
Operating Partnership to the UDRT Operating Partnership, and (d) the sale of a
minority of the ASR assets to unrelated parties.
11. Each of United Dominion, ASR, and ASR's stockholders has paid or
will pay its respective expenses, if any, incurred in connection with the
Merger, except that United Dominion might pay expenses of ASR solely and
directly related to the Merger.
12. No share of ASR common stock has been or will be redeemed in
anticipation of the Merger, and ASR has not made, and will not make, any
extraordinary distribution with respect to its stock in anticipation of the
Merger (other than any distribution made by ASR pursuant to section 2.2(d)(i) of
the Merger Agreement).
13. There is no plan or intention by stockholders of ASR to sell,
exchange, or otherwise dispose of a number of shares of United Dominion common
stock received in the Merger that would reduce the ASR stockholders' ownership
of United Dominion common stock to a number of shares having a fair market
value, as of the effective date of the Merger, of less than 50 percent of the
fair market value of all the formerly outstanding ASR common stock. For this
purpose, (a) shares of ASR common stock exchanged for cash in lieu of fractional
shares of United Dominion common stock are treated as outstanding as of the
effective date of the Merger, (b) the value of United Dominion common stock
received in the Merger is treated as being less than the value of the formerly
outstanding ASR common stock by an amount equal to any distributions made by ASR
in connection with the Merger and not described in the parenthetical language in
clause (b) of paragraph 5 above, and (c) shares of ASR common stock and shares
of United Dominion common stock held by ASR stockholders and otherwise sold,
redeemed, or disposed of before or after the Merger are considered.
14. The liabilities of ASR, the liabilities of any Qualified REIT
Subsidiary of ASR, the liabilities of the ASR Operating Partnership, and the
liabilities to which the assets of ASR, any Qualified REIT Subsidiary of ASR,
and the ASR Operating Partnership are subject were incurred in the ordinary
course of business.
15. On the effective date of the Merger, the fair market value of the
assets of ASR will exceed the sum of ASR's liabilities plus (without
duplication) the amount of liabilities, if any, to which the assets are subject.
16. ASR does not hold any asset the disposition of which could be
subject to section 1374 of the Code.
17. ASR has not filed, and holds no asset subject to, a consent
pursuant to section 341(f) of the Code and the regulations thereunder.
18. ASR is not a party to, and holds no asset subject to, a "safe
harbor lease" under former section 168(f)(8) of the Code and the regulations
thereunder.
19. Any shares of United Dominion common stock received in exchange for
shares of ASR common stock that (a) were acquired in connection with the
performance of services, including stock acquired through the exercise of an
option or warrant acquired in connection with the performance of services, and
(b) are subject to a substantial risk of forfeiture within the meaning of
section 83(a) of the Code will be subject to substantially the same risk of
forfeiture after the Merger.
20. No outstanding ASR common stock acquired in connection with the
performance of services was or will have been acquired within six months before
the effective date of the Merger by any person subject to section 16(b) of the
Securities Exchange Act of 1934, as amended, other than pursuant to an option
granted more than six months before the effective date of the Merger.
21. Less than 50% of the fair market value of the outstanding stock of
each of United Dominion (including both United Dominion common stock and United
Dominion preferred stock) and ASR is held, directly or indirectly, by non-United
States persons.
22. The following payments will be made solely from funds of ASR and
will not be made from funds provided, directly or indirectly, by United
Dominion, the UDRT Operating Partnership, or any subsidiary of United Dominion
or the UDRT Operating Partnership: (a) any distribution to ASR stockholders
pursuant to section 2.2(d)(i) of the Merger Agreement and (b) any amount paid to
purchase ASR stock options, to terminate ASR employment agreements, to cancel
ASR dividend equivalent rights, to satisfy ASR stock appreciation rights, for
fees to ASR directors, and for any other liability of ASR fixed by or created
pursuant to the Merger Agreement.
23. Neither United Dominion, the UDRT Operating Partnership, nor any
subsidiary of the foregoing owns, has owned during the last five years, or will
own before the Merger any share of ASR stock.
Based on the foregoing, and assuming that the Merger will be
consummated in accordance with the Merger Agreement, we are of the opinion that
(under existing law) for federal income tax purposes:
1. Because ASR will become a Qualified REIT Subsidiary as a
result of the Merger and, therefore, will cease to be treated as a corporation
separate from United Dominion for federal income tax purposes, the Merger will
be treated as a transfer by ASR of its assets to United Dominion in exchange for
United Dominion common stock and United Dominion's assumption of ASR's
liabilities, followed immediately by the distribution by ASR of such United
Dominion common stock to the ASR stockholders in exchange for their ASR common
stock. As so characterized, the Merger will qualify as a reorganization within
the meaning of section 368(a)(1)(C) of the Code.
2. An ASR stockholder will not recognize gain or loss on the
exchange of his shares of ASR common stock for shares of United Dominion common
stock (including any fractional share interest) in the Merger.
3. Cash received by an ASR stockholder in lieu of a
fractional share of United Dominion common stock will be treated as having been
received as full payment in exchange for such fractional share pursuant to
section 302(a) of the Code. Accordingly, such a stockholder will recognize gain
or loss equal to the difference between the amount of cash received for such
fractional share and the stockholder's basis in the fractional share interest.
4. The aggregate basis of shares of United Dominion common
stock (including any fractional share interest) received by an ASR stockholder
in the Merger will be the same as the aggregate basis of the shares of ASR
common stock exchanged therefor.
5. The holding period for shares of United Dominion common
stock (including any fractional share interest) received by an ASR stockholder
in the Merger will include the holding period for the shares of ASR common stock
exchanged therefor, if such shares of ASR common stock are held as a capital
asset on the effective date of the Merger.
6. The material federal income tax consequences of the Merger
to ASR stockholders are fairly summarized in the S-4 under the caption "THE
MERGER -- Certain Federal Income Tax Consequences."
We hereby consent to the filing of this opinion as an exhibit
to the S-4. In giving this consent, we do not admit that we are in the category
of persons whose consent is required by Section 7 of the 1933 Act or the rules
and regulations promulgated thereunder by the Securities and Exchange
Commission.
Very truly yours,
Hunton & Williams
<PAGE>
February 17, 1998
ASR Investments Corporation
335 North Wilmot, Suite 250
Tucson, Arizona 85711
United Dominion Realty Trust, Inc.
Qualification as
Real Estate Investment Trust
Ladies and Gentlemen:
We have acted as counsel to United Dominion Realty Trust,
Inc., a Virginia corporation (the "Company"), in connection with the proposed
merger (the "Merger") of ASR Acquisition Sub, Inc., a Maryland corporation and
wholly-owned subsidiary of the Company ("ASR Sub"), into ASR Investments
Corporation, a Maryland corporation. You have requested our opinion on certain
United States ("U.S.") federal income tax matters in connection with the Merger.
The Company is an equity real estate investment trust ("REIT") that owns and
operates apartments and commercial properties in the southern United States.
In connection with the opinion rendered below, we have
examined the following:
1. the Restated Articles of Incorporation of the Company;
2. the Amended and Restated Bylaws of the Company;
3. the minutes of meetings the Company's directors held
during calendar years 1993, 1994, 1995, 1996, and 1997;
4. the letter ruling from the U.S. Internal Revenue Service
(the "Service") to the Company dated December 21, 1989, regarding the
characterization of certain amounts to be received by the Company from its
rental properties (the "1989 Letter Ruling");
5. the Company's audited financial statements for the years
ended December 31, 1993, 1994, 1995, and 1996;
6. the Company's unaudited financial statements for the year
ended December 31, 1997;
7. the Company's U.S. federal income tax returns for taxable
years 1993, 1994, 1995, and 1996;
8. the organizational documents of ASR Sub;
9. the Second Amended and Restated Agreement of Limited
Partnership of United Dominion Realty, L.P. (the "Operating Partnership"), dated
as of August 30, 1997 (the "Operating Partnership Agreement"), among the
Company, as general partner, and several limited partners;
10. the partnership agreements and operating agreements
(together with the Operating Partnership Agreement, the "Partnership
Agreements") of any subsidiary partnerships or limited liability companies of
the Company (the "Subsidiary Partnerships");
11. the prospectus for the Company's Dividend Reinvestment
and Stock Purchase Plan dated January 16, 1998; and
12. the Registration Statement on Form S-4 under the
Securities Act of 1933, as amended (the "1933 Act"), relating to the Merger (the
"Registration Statement").
In connection with the opinion rendered below, we have assumed
generally that:
1. Each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is
accurate, if a copy; and has not been amended;
2. The Company qualified as a REIT for its 1992 taxable year
and all prior taxable years;
3. During its 1998 taxable year and future taxable years, the
Company has operated and will continue to operate in such a manner that makes
and will continue to make the representations contained in a certificate, dated
February 17, 1998 and executed by a duly appointed officer of the Company (the
"Officer's Certificate"), true for such years;
4. The Company will not make any amendments to its
organizational documents or to the Partnership Agreements after the date of this
opinion that would affect its qualification as a REIT for any taxable year;
5. Each partner of the Operating Partnership and the
Subsidiary Partnerships (each, a "Partner") that is a corporation or other
entity has a valid legal existence;
6. Each Partner has full power, authority, and legal right to
enter into and to perform the terms of the applicable Partnership Agreement and
the transactions contemplated thereby;
7. The 1989 Letter Ruling has not been and will not be
revoked or modified by the Service; and
8. No actions will be taken by the Company, ASR Sub, or the
Operating Partnership after the date hereof that would have the effect of
altering the facts upon which the opinion set forth below is based.
In connection with the opinion rendered below, we
also have relied upon the correctness of the representations contained in the
Officer's Certificate.
Based solely on the documents and the assumptions set forth
above, the representations set forth in the Officer's Certificate, and without
further investigation, we are of the opinion that, commencing with its taxable
year ended December 31, 1993, the Company has been organized and has operated,
and its proposed method of operation following the Merger will permit it to
continue to be organized and operated, in conformity with the requirements for
qualification as a REIT pursuant to sections 856 through 860 of the U.S.
Internal Revenue Code of 1986, as amended (the "Code"). Except as described
herein, we have performed no further due diligence and have made no efforts to
verify the accuracy and genuineness of the documents and assumptions set forth
above, or the representations set forth in the Officer's Certificate. We will
not review the Company's compliance with such documents, assumptions, and
representations on a continuing basis. Accordingly, no assurance can be given
that the actual results of the Company's operations for its 1998 and subsequent
taxable years will satisfy the requirements for qualification and taxation as a
REIT.
The foregoing opinion is based on current provisions of the
Code and the Treasury regulations thereunder, published administrative
interpretations thereof, and published court decisions. The Service has not
issued regulations or administrative interpretations with respect to various
provisions of the Code relating to REIT qualification. No assurance can be given
that the law will not change in a way that will prevent the Company from
qualifying as a REIT.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the references to Hunton &
Williams under the caption "Federal Income Tax Considerations" in the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required by Section 7 of the 1933 Act
or the rules and regulations promulgated thereunder by the Securities and
Exchange Commission.
The foregoing opinion is limited to the U.S. federal income
tax matters addressed herein, and no other opinions are rendered with respect to
other U.S. federal tax matters or to any issues arising under the tax laws of
any other country or any state or locality. We undertake no obligation to update
the opinion expressed herein after the date of this letter. This opinion letter
is solely for the information and use of the addressee, and it may not be
distributed, relied upon for any purpose by any other person, quoted in whole or
in part or otherwise reproduced in any document, or filed with any governmental
agency without our express written consent.
Very truly yours,
Hunton & Williams
[Rogers & Wells Logo]
Rogers & Wells LLP
200 Park Avenue
New York, NY 10188-0153
Telephone 212 878-8000
Facsimile 212 878-8975
February 17, 1998
ASR Investments Corporation
335 N. Wilmot, Suite 250
Tucson, AZ 85711
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, VA 23219-3802
Re: ASR Merger with United Dominion Realty Trust, Inc.
Ladies and Gentlemen:
You have requested our opinion with respect to certain federal income tax
matters in connection with the transactions contemplated by the Agreement and
Plan of Merger dated as of December 19, 1997 (the "Merger Agreement"), among ASR
Investments Corporation ("ASR"), United Dominion Realty Trust, Inc. ("United
Dominion"), and ASR Acquisition Sub, Inc., a wholly owned subsidiary of United
Dominion ("ASR Sub"). The transactions include the merger of ASR and ASR Sub,
with ASR continuing as the surviving corporation (the "Merger"). As part of the
transaction, each issued and outstanding share of common stock, par value $.01
per share, of ASR (the "ASR Common Stock") will be converted into the right to
receive 1.575 fully paid and non-assessable shares of Common Stock of United
Dominion, par value $1.00 per share (the "Common Stock"). Capitalized terms not
otherwise defined herein shall have the meanings given to them in the Proxy
Statement/Prospectus, dated February 17, 1998 (the "Proxy
Statement/Prospectus").
In rendering the opinions stated below, we have examined and relied, with your
consent, upon the following:
(i) The Merger Agreement;
(ii) The Proxy Statement/Prospectus; and
(iii) such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinions expressed
in this letter.
In our examination of the foregoing documents, we have assumed, with your
consent, that (i) all documents reviewed by us are original documents, or true
and accurate copies of original documents, and have not been subsequently
amended, (ii) the signatures on each original document are genuine,
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ASR Investments Corporation Page 2
United Dominion Realty Trust, Inc.
February 17, 1998
(iii) each party who executed the document had proper authority and capacity,
(iv) all representations and statements set forth in such documents are true
and correct, (v) all obligations imposed by any such documents on the parties
thereto have been or will be performed or satisfied in accordance with their
terms and (vi) United Dominion, ASR and ASR Sub have at all times been and
United Dominion and ASR will at all times continue to be organized and operated
in accordance with the terms of such documents. We have further assumed, with
your consent, the accuracy of the statements and descriptions of United
Dominion's and ASR's intended activities as described in the Merger Agreement
and the Proxy Statement/Prospectus.
For purposes of rendering the opinions stated below, we have further assumed,
with your consent, the accuracy of the representations contained in the
Certificate of Representations dated February 17, 1998, provided to us by ASR
(the "ASR Certificate") and the Certificate of Representations dated February
17, 1998, provided to us by United Dominion (the "United Dominion Certificate").
These representations generally relate to the qualification of the Merger as
a tax-free reorganization for federal income tax purposes. We have also relied
on the opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.
that ASR qualifies, and will continue to qualify up to the effective date of the
Merger, as a REIT, and the opinion of Hunton & Williams that, commencing with
its taxable year ended December 31, 1993, United Dominion has qualified and will
continue to qualify as a REIT.
Based upon and subject to the foregoing, we are of the opinion that:
1) Following the Merger, ASR will become a "qualified REIT subsidiary"
and, therefore, will cease to be treated as a corporation separate from
United Dominion for federal income tax purposes. Accordingly, the Merger will
be treated as a transfer by ASR of its assets to United Dominion in exchange
for United Dominion common stock and United Dominion's assumption ASR's
liabilities, followed immediately by the distribution by ASR of such United
Dominion common stock to the ASR stockholders in exchange for their ASR
common stock. As such, the Merger will qualify as a reorganization within the
meaning of the Internal Revenue Code of 1986, as amended (the "Code") under
(section) 368(a)(1)(C) and no taxable gain or loss will be recognized by ASR,
ASR Sub or United Dominion as a result of the Merger. Code (section)(section)
368(a)(1)(C), 361(a), and 354.
2) A stockholder of ASR will not recognize taxable gain or loss on the
exchange of his shares of ASR Common Stock for shares of Common Stock (including
any fractional share interest) in the Merger. Code (section) 354(a)(1).
3) Cash received by an ASR stockholder in lieu of a fractional share
of Common Stock will be treated as having been received as full payment in
exchange for such fractional share. Code (section)302. Accordingly, such a
stockholder will recognize gain or loss equal to the difference between the
amount of cash received for such fractional share and the stockholder's basis
in the fractional share interest. Code (section) 1001.
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ASR Investments Corporation Page 3
United Dominion Realty Trust, Inc.
February 17, 1998
4) The aggregate tax basis of shares of Common Stock (including any
fractional share interest) received by an ASR stockholder in the Merger will be
the same as the aggregate tax basis of the shares of ASR Common Stock exchanged
therefor. Code (section) 358(a)(1).
5) The holding period for shares of Common Stock (including any
fractional share interest) received by an ASR stockholder in the Merger will
include the holding period for the shares of ASR Common Stock exchanged
therefor, provided the ASR stockholder held such shares of ASR Common Stock as a
capital asset on the effective date of the Merger. Code (section) 1223(1).
6) The information in the Proxy Statement/Prospectus under the heading
"The Merger--Certain Federal Income Tax Consequences" has been reviewed by us
and, to the extent such summary involves matters of law, is correct in all
material respects.
The opinions stated above represent our conclusions as to the application of
federal income tax laws existing as of the date of this letter to the
transactions contemplated in the Merger Agreement and the Proxy
Statement/Prospectus and we can give no assurance that legislative enactments,
administrative changes or court decisions may not be forthcoming that would
modify or supersede our opinions. An opinion of counsel merely represents
counsel's judgement with respect to the probable outcome on the merits and is
not binding on the Internal Revenue Service or the courts. There can be no
assurance that positions contrary to such opinion will not be taken by the
Internal Revenue Service, or that a court considering the issues would not hold
contrary to such opinion.
The opinions set forth above represents our conclusions based upon the
documents, facts and representations referred to above. Any material amendments
to such documents, changes in any significant facts or inaccuracy of such
representations could affect the opinions referred to herein. Although we have
made such inquiries and performed such investigations as we have deemed
necessary to fulfill our professional responsibilities as counsel, we have not
undertaken an independent investigation of all of the facts referred to in this
letter, the ASR Certificate and the United Dominion Certificate.
The opinions set forth in this letter: (i) are limited to those matters
expressly covered; no opinion is to be implied in respect of any other matter;
(ii) are as of the date hereof; and (iii) may not be relied on by any other
person or entity other than you or the ASR stockholders without our prior
written consent. We hereby consent to the filing of this opinion as an Exhibit
to the Proxy Statement/Prospectus and to the use of our name under the captions
"The Merger--Certain Federal Income Tax Consequences" and "Legal Opinions" in
the Proxy Statement/Prospectus.
Very truly yours,
/s/ Rogers & Wells LLP
EXHIBIT 8(c)
[O'CONNOR CAVANAGH LETTERHEAD]
February 17, 1998
United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219
Ladies and Gentlemen:
We have acted as counsel to ASR Investments Corporation, a Maryland
corporation ("ASR"), in connection with the proposed merger (the "Merger")
of ASR Acquisition Sub, Inc., a Maryland corporation (the "Acquisition Sub")
and wholly owned subsidiary of the United Dominion Realty Trust, Inc., a
Virginia corporation, into ASR. You have requested our opinion on certain
United States income tax matters in connection with the Merger.
In connection with the opinion rendered below, we have examined
the following:
1. The Articles of Amendment and Restatement of Articles of
Incorporation of ASR, filed as of June 4, 1997;
2. Bylaws of ASR, as amended to date;
3. The Second Amended and Restated Agreement of Limited Partnership of
Heritage Communities L.P., dated as of September 18, 1997 (the "Operating
Partnership Agreement"), among ASR, as general partner, Heritage SGP
Corporation, an Arizona corporation and wholly owned subsidiary of ASR
("Heritage SGP"), as special general partner, and several limited partners;
4. The partnership agreements and operating agreements (together with
the Operating Partnership Agreement, the "Partnership Agreements")
of any subsidiary partnerships or limited liability companies of the ASR,
Heritage SGP and Heritage Communities L.P. (the "Subsidiary Partnerships");
5. The certificate of limited partnership of the Operating Partnership
and the certificates of limited partnership or articles or organization for the
Subsidiary Partnerships; and
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United Dominion Realty Trust, Inc.
February 17, 1998
Page 2
6. The Registration Statement on Form S-4 under the Securities Act of
1933, as amended (the "1933 Act"), relating to the Merger (the "Registration
Statement").
In connection with the opinion rendered below, we have assumed generally
that:
a. Each of the documents referred to above has been duly authorized,
executed, and delivered, is authentic, if an original, or is accurate, if a
copy, and has not been amended;
b. ASR qualified as a REIT for its 1992 taxable year and all prior
taxable years;
c. During its 1998 taxable year, ASR has operated in such a manner that
makes the representations contained in a certificate, dated February 17, 1998
and executed by a duly appointed officer of ASR (the "Officer's Certificate"),
true for such year;
d. ASR will not make any amendments to its organizational documents or
to the Partnership Agreements after the date of this opinion that would affect
its qualification as a REIT for any taxable year;
e. Each partner of the Operating Partnership and the Subsidiary
Partnerships (each, a "Partner") that is a corporation or other entity has
a valid legal existence;
f. Each partner has full power, and legal right to enter into and to
perform the terms of the applicable Partnership Agreement and the transactions
contemplated thereby; and
g. No actions will be taken by the ASR or the Operating Partnership
after the date hereof that would have the effect of altering the facts upon
which the opinion set forth below is based.
In connection with the opinion rendered below, we also have relied upon
the correctness of the representations contained in the Officer's Certificate.
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United Dominion Realty Trust, Inc.
February 17, 1998
Page 3
Based solely on the documents and assumptions set forth above, the
representations set forth in the Officer's Certificate, and without further
investigation, we are of the opinion that:
(1) Commencing with its taxable year ended December 31, 1993,
ASR has been organized and has operated in conformity with the requirements for
qualification as a REIT pursuant to sections 856 through 860 of the U.S.
Internal Revenue Code of 1986, as amended (the "Code"); and
(2) The Operating Partnership and each Subsidiary Partnership
have been treated since formation as partnerships and not as associations
taxable as corporations for federal income tax purposes.
Except as described herein, we have performed no further due diligence
and have made no efforts to verify the accuracy and genuineness of the documents
and assumptions set forth above, or the representations set forth in the
Officer's Certificate. We will not review ASR's compliance with such documents,
assumptions, and representations on a continuing basis. Accordingly, no
assurance can be given that the actual results of ASR's operations for its 1998
taxable year will satisfy the requirements for qualification and taxation as a
REIT.
We render the foregoing opinion in our capacity as attorneys admitted to
practice law in the State of Arizona. The foregoing opinion is limited to the
U.S. income tax matters addressed herein, and no other opinions are rendered
with respect to other U.S. tax matters or to any issues arising under the tax
laws of any other country or any state or locality. You should be aware that the
foregoing opinion is not binding upon the Internal Revenue Service or courts and
represents only our good faith evaluation of the provisions of the Internal
Revenue Code and applicable Treasury Regulations promulgated thereunder,
published rulings of the Internal Revenue Service, and court decisions, any of
which could be changed or overruled at a future date with retroactive effect.
The Internal Revenue Service has not issued regulations or administrative
interpretations with respect to various provisions of the Code relating to REIT
qualification. No assurance can be given that the law will not change in a way
that will prevent ASR from qualifying as a REIT. In rendering the foregoing
opinion, we have reviewed only those authorities available to us on the business
day preceding the date of this letter. We assume no responsibility for changes
in applicable law occurring after such date, and we undertake no obligation to
update the opinion expressed herein after the date of this letter. In addition,
the opinion expressed in this letter is subject to each of the several
conditions expressed above, and should any condition not be met, the opinion
shall cease to have any effect.
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United Dominion Realty Trust, Inc.
February 17, 1998
Page 4
This opinion letter is solely for the information and use of the
addressee, and it may not be distributed, relied upon for any purpose by any
other person, quoted in whole or in part or otherwise reproduced in any
document, or filed with any governmental agency without our express written
consent. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the references to O'Connor, Cavanagh,
Anderson, Killingsworth & Beshears under the caption "Federal Income Tax
Considerations" in the Registration Statement.
Very truly yours,
O'Connor, Cavanagh, Anderson
Killingsworth & Beshears
a professional association
