Attached files
file | filename |
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8-K - FORM 8-K - UDR, Inc. | c93534e8vk.htm |
EX-8.01 - EXHIBIT 8.01 - UDR, Inc. | c93534exv8w01.htm |
EX-1.01 - EXHIBIT 1.01 - UDR, Inc. | c93534exv1w01.htm |
Exhibit 8.02
[KUTAK ROCK LLP
LETTERHEAD]
LETTERHEAD]
December 7, 2009
UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Ladies and Gentlemen:
We have acted as special tax counsel to UDR, Inc., a Maryland corporation (the Company), in
connection with the proposed issuance and sale by the Company of an indeterminate principal amount
of Medium-Term Notes, Series A, Due Nine Months or More From Date of Issue (the Notes), pursuant
to that certain Amended and Restated Distribution Agreement dated December 7, 2009 (the
Distribution Agreement), by the Company on the one hand, and J.P. Morgan Securities Inc., Banc of
America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Wells Fargo
Securities, LLC on the other hand. The Notes are subject to a registration statement (the
Registration Statement) on Form S-3 (File No. 333-156002) filed by the Company with the
Securities and Exchange Commission (the SEC) on December 8, 2008, under the Securities Act of
1933 (the Securities Act), a prospectus contained in the Registration Statement (the Base
Prospectus), and a prospectus supplement to the Base Prospectus dated December 7, 2009 (the
Prospectus Supplement and, together with the Base Prospectus, the Prospectus). Capitalized
terms not defined herein shall have the meanings ascribed to them in the certificate (or
incorporated therein by reference), dated of even date herewith (the Officers Certificate),
delivered to Kutak Rock LLP by the Company which provides certain representations by it relevant to
this opinion.
You have requested our opinion as to the status of the Company as a REIT for U.S. federal
income tax purposes. In connection with this opinion, we have examined and relied upon the
following, with your consent: (i) the Officers Certificate, (ii) the Registration Statement and
the Prospectus, and (iii) such other documents as we have considered relevant to our analysis. In
our review of such documents in connection with our opinion as expressed below, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed, photostatic, or electronic copies, and the authenticity of
the originals of such copies. Where documents have been provided to us in draft
form, we have assumed that the final executed versions of such documents will not differ materially
from such drafts.
December 7, 2009
Page 2
Page 2
The Officers Certificate relates to, among other things, the actual and proposed operations
of the Company and the entities in which it holds, or has held, a direct or indirect interest.
These representations and covenants relate, in some cases, to transactions and investments for
which we did not act as the Companys primary counsel. For purposes of our opinion, we have not
independently verified all of the statements, representations and covenants set forth in the
Officers Certificate, the Registration Statement, or in any other document. We have,
consequently, assumed and relied on your representation that the statements, representations and
covenants contained in the Officers Certificate, the Registration Statement, and other documents,
or otherwise furnished to us, accurately and completely describes all material facts relevant to
our opinion. We have assumed that such statements, representations and covenants are true without
regard to any qualification as to knowledge, belief, intent, or materiality. Our opinion is
conditioned on the continuing accuracy and completeness of such statements, representations and
covenants. We are not aware of any facts inconsistent with such statements, representations and
covenants. We have, at the Companys request, also assumed for purposes of our opinion that any
legal opinion received by the Company on or before December 8, 2008, to the effect that the Company
was taxable as a REIT, is correct. Any material change or inaccuracy in the facts referred to, set
forth, or assumed herein or in the Officers Certificate, including the correctness of any such
prior legal opinion, may affect our conclusions set forth herein.
Our opinion is also based on the correctness of the following assumptions: (i) UDR and each of
the entities comprising the Company has been and will continue to be operated in accordance with
the laws of the jurisdiction in which it was formed and in the manner described in the relevant
organizational documents, (ii) there will be no changes in the applicable laws of the State of
Maryland or of any other jurisdiction under the laws of which any of the entities comprising the
Company have been formed, and (iii) each of the written agreements to which the Company is a party
has been and will be implemented, construed and enforced in accordance with its terms.
In rendering our opinion, we have considered and relied upon the Internal Revenue Code of
1986, as amended (the Code), the regulations promulgated thereunder
(Regulations), administrative rulings and other Treasury interpretations of the Code and
the Regulations by the courts and the Internal Revenue Service (IRS), all as they exist
at the date hereof. It should be noted that the Code, Regulations, judicial decisions, and
administrative interpretations are subject to change at any time and, in some circumstances, with
retroactive effect. A material change that is made after the date hereof in any of the foregoing
bases for our opinion could affect our conclusions set forth herein. In this regard, an opinion
of counsel with respect to an issue represents counsels best judgment as to the outcome on the
merits with respect to such issue, is not binding on the IRS or the courts, and is not a guarantee
that the IRS will not assert a
contrary position with respect to such issue or that a court will not sustain such a position
if asserted by the IRS.
December 7, 2009
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Page 3
We express no opinion as to the laws of any jurisdiction other than the federal laws of
the United States. We express no opinion on any issue relating to UDR or any investment
therein, other than as expressly stated herein.
Based on and subject to the foregoing, we are of the opinion that commencing with the
Companys taxable year that ended on December 31, 2006, and for the taxable years ended December
31, 2007 and 2008, the Company has been organized and operated in conformity with the requirements
for qualification as a REIT under the Code, and its organization and its actual method of
operation through the date of this letter has enabled, and its proposed method of operation will
enable, it to meet the requirements for qualification and taxation as a REIT under the Code
thereafter. As noted in the Registration Statement, the Companys qualification and taxation as a
REIT depend upon its ability to meet, through actual operating results, certain requirements
relating to the sources of its income, the nature of its assets, distribution levels and diversity
of stock ownership, and various other qualification tests imposed under the Code, the results of
which are not reviewed by us. Accordingly, no assurance can be given that the actual results of
the Companys operation for any one taxable year will satisfy the requirements for taxation as a
REIT under the Code.
This opinion is furnished to you solely for use in connection with the Prospectus Supplement.
This opinion is solely for your benefit, and may not be relied upon by, nor may copies be
delivered to, any other person without our prior written consent. We hereby consent to the filing
of this opinion as an exhibit to the Companys filings with the SEC in connection with the
offering of the Notes and to the reference to our firm name in the Prospectus Supplement under the
caption Material U.S. Federal Income Tax Considerations. In giving this consent, we do not
admit that we come within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the SEC. This opinion is expressed as of
the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any
legal developments or factual matters arising subsequent to the date hereof.
Very truly yours, | ||||
/s/ Kutak Rock LLP |