EXHIBIT 1.01
UNITED DOMINION REALTY TRUST, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
June 17, 2004
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
McDonald Investments Inc.
127 Public Square
Cleveland, Ohio 44114
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Wachovia Capital Markets, LLC
301 S. College St., NC0600
Charlotte, NC 28288
Ladies and Gentlemen:
United Dominion Realty Trust, Inc., a Maryland corporation (the
"Company"), confirms its agreement with J.P. Morgan Securities Inc., Banc of
America Securities LLC, Goldman, Sachs & Co., McDonald Investments, Inc.,
Citigroup Global Markets Inc., and Wachovia Capital Markets, LLC (each, an
"Agent", and together, the "Agents") with respect to the issue and sale by the
Company of its Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes"). The Notes are to be issued pursuant to an Indenture, dated as of
November 1, 1995, as amended, supplemented or modified from time to time (the
"Indenture"), between the Company (successor by merger to United Dominion Realty
Trust, Inc., a Virginia corporation) and Wachovia Bank, National Association
(formerly First Union National Bank of Virginia), as trustee (the "Trustee"). As
of the date hereof, the Company has authorized the issuance and sale of up to
U.S. $750,000,000 aggregate initial offering price (or its equivalent, based
upon the applicable exchange rate at the time of issuance, in such foreign or
composite currencies as the Company shall designate at the time of issuance) of
Notes to or through the Agents pursuant to
the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
United Dominion Realty, L.P., a Delaware limited partnership (the
"Operating Partnership"), and Heritage Communities L.P., a Delaware limited
partnership ("Heritage OP"), are hereinafter referred to collectively as the
"Operating Entities" and individually referred to as an "Operating Entity." All
references herein to any "subsidiary" or "subsidiaries" of the Company shall be
deemed to include the Operating Entities unless otherwise expressly stated.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case such
Agent will act as an agent of the Company in soliciting purchases of the Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-115696) for the
registration of securities (including the Notes) under the Securities Act of
1933, as amended (the " 1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may have been required prior to the
Company's acceptance of an offer to purchase Notes. Such registration statement
(as amended, if applicable) has been declared effective by the Commission. Such
registration statement (as amended, if applicable), including the information,
if any, deemed to be a part thereof pursuant to Rule 434 of the 1933 Act
Regulations, on the one hand, and the prospectus constituting a part thereof and
each prospectus supplement relating to the offering of Notes first provided to
the Agents for use (whether or not such prospectus supplement is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations) (the
"Prospectus Supplement"), on the other hand, including in each case all
documents incorporated therein by reference, as from time to time amended or
supplemented prior to the Company's acceptance of an offer to purchase Notes
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus", respectively; provided, however, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Notes to which it relates. All references in
this Agreement to financial statements and schedules and other information which
is "contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include, without limitation, any document filed under the
1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to
"Prospectus" shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken
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together, provided to the Agents by the Company in reliance on Rule 434 under
the 1933 Act (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the securities and relies on Rule 462(b) for
such registration statement to become effective upon filing with the Commission
(the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" shall be deemed to include the Rule 462 Registration Statement.
SECTION 1. Appointment as Agents.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold to or through
the Agents. Notwithstanding any provision herein to the contrary, the Company
reserves the right to appoint additional agents for the offer and sale of Notes,
which agency may be on an on-going basis or on a one-time basis. Any such
additional agent shall become a party to this Agreement and shall thereafter be
subject to the provisions hereof and entitled to the benefits hereunder upon the
execution of a counterpart hereof or other form of acknowledgement of its
appointment hereunder, including the form of letter attached hereto as Exhibit
B, and delivery to the Company of addresses for notice hereunder and under the
Procedures.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
from the Company by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agents. If agreed upon by an Agent and the
Company, such Agent, acting solely as agent for the Company and not as
principal, will solicit purchases of the Notes. Unless otherwise instructed by
the Company, such Agent will communicate to the Company, orally, each offer to
purchase Notes solicited by it on an agency basis other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company may accept or reject any proposed purchase of
Notes, in whole or in part. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by it and accepted by the Company. Such Agent shall not
have any liability to the Company in the event that any such purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default.
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(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as agent of the Company shall be
placed by such Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms and conditions
and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the Commission any document incorporated
by reference into the Prospectus (each of the times referenced above being
referred to herein as a "Representation Date"), as follows:
(i) Due Incorporation and Qualification. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with full power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries, taken as a
whole.
(ii) Subsidiaries. Each subsidiary of the Company has been
duly organized and is validly existing as a corporation, limited
liability company, limited partnership, general partnership or real
estate investment trust, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or organization, with
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus and is duly
qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification except where the
failure to so be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; each Operating Entity is
duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the
business of such Operating Entity; all of the issued and outstanding
shares of capital stock of each such corporate subsidiary and all of
the issued and outstanding shares of beneficial interest of each such
real estate investment trust subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Company or a subsidiary of the Company, free and clear of any perfected
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; all of the issued and outstanding partnership interests of each
such partnership subsidiary and all of the issued and outstanding
limited liability company interests of each such limited liability
company
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subsidiary have been duly authorized and validly issued, are fully paid
and (except in the case of general partnership interests)
non-assessable and, except as otherwise disclosed in the Prospectus,
are owned by the Company and/or one or more subsidiaries of the
Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; and the Company and/or one or more
subsidiaries of the Company are the only members or general partners of
the Company's limited liability company or limited partnership
subsidiaries, as applicable, and own the entire membership or general
partnership interest in each such subsidiary free and clear of any
perfected security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(iii) Registration Statement and Prospectus. The Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x) of the
1933 Act Regulations. The conditions for use of registration statements
on Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transaction contemplated herein. The Registration Statement and the
Prospectus conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material
respects to the requirements of the 1933 Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not, as of
the respective effective dates as to the Registration Statement, any
Rule 462(b) Registration Statement and any amendment thereto and as of
the applicable filing date of the Prospectus and any amendment or
supplement thereto and as of each Representation Date, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to (1) that part of the Registration Statement
which shall constitute the Statement of Eligibility under the Trust
Indenture Act of the Trustee (the "Form T-1") or (2) any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Agent expressly for use in
the Prospectus as amended or supplemented relating to such Notes.
(iv) Incorporated Documents. The documents incorporated by
reference in the Registration Statement, when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1933 Act or the 1934 Act,
as applicable, and the rules and regulations of the Commission
thereunder, and do not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Registration
Statement are independent public accountants within the meaning of the
1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements together
with related notes and schedules of the Company and its subsidiaries
and of any companies, other entities or properties acquired or to be
acquired by the Company, in each case as set forth or incorporated by
reference in the Registration Statement and the Prospectus, present
fairly
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the financial position and the results of operations of the Company and
its subsidiaries and of such companies, entities and properties, as the
case may be, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with United
States generally accepted principles of accounting, consistently
applied throughout the periods involved, and all adjustments necessary
for a fair presentation of results for such periods have been made
(except to the extent that, in accordance with the Exchange Act and the
rules and regulations of the Commission thereunder, certain footnotes
have been omitted from the financial statements included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Registration Statement and the Prospectus). The summary financial
and statistical data included in the Registration Statement and
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the financial statements presented
therein; the pro forma financial statements and related notes thereto
included in the Registration Statement and Prospectus present fairly
the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumption used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(vii) Validity of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(viii) Authorization and Validity of the Indenture. The
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act, and, at each Representation Date, will constitute a
valid and legally binding instrument, enforceable in accordance with
its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights generally and to general equity principles,
and except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Notes payable other than
in U.S. dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(ix) Authorization and Validity of the Notes. The Notes have
been duly and validly authorized for issuance, offer and sale pursuant
to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor, the Notes will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (1) requirements that a claim
with respect to any Notes payable other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (2) governmental
authority to limit, delay or
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prohibit the making of payments outside the United States; the Notes
and the Indenture will be substantially in the form heretofore
delivered to the Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each
holder of Notes will be entitled to the benefits of the Indenture.
(x) No Conflicts. The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, this Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (except in any case in
which such would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries taken as a whole), nor will such
action result in any violation of the provisions of the Amended and
Restated Articles of Incorporation or bylaws of the Company, or any
law, statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Notes or the consummation by the Company
of the transactions contemplated by this Agreement or the Indenture,
except such as have been, or will have been prior to each
Representation Date, obtained under the 1933 Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Agents.
(xi) Material Changes or Material Transactions. Neither the
Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and
Prospectus, (i) there has not been any material change in the capital
stock, total assets or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
each Representation Date and (ii) neither the Company nor any of its
subsidiaries has entered into any transaction not in the ordinary
course of business which is material to the Company and its
subsidiaries considered as a whole.
(xii) No Defaults. Neither the Company nor any of its
subsidiaries is in violation of its Amended and Restated Articles of
Incorporation or bylaws, limited partnership agreement, limited
liability company agreement, operating agreement or
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other organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of them may be bound.
(xiii) Legal Proceedings. Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xiv) Licenses; Trademarks. The Company and each of its
subsidiaries hold all material licenses, certificates and permits from
governmental authorities which are necessary to the conduct of their
respective businesses; and neither the Company nor any of its
subsidiaries has infringed any patents, patent rights, trade names,
trademarks or copyrights, which infringement is material to the
business of the Company or any of its subsidiaries.
(xv) Marketable Title; Leasehold Estates. Except as described
in the Prospectus, the Company and its subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property referred to in the Prospectus as
owned or leased by them, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than those
referred to in the Prospectus or which would not materially affect the
value thereof or materially interfere with the use made or to be made
by them.
(xvi) Hazardous Material. The Company has no knowledge of (1)
the unlawful presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by it or any of its
subsidiaries, or of (2) any unlawful spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring off such properties as a result of any construction on or
operation and use of such properties which presence or occurrence would
materially adversely affect the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
its subsidiaries, taken as a whole. In connection with the construction
on or operation and use of the properties owned by the Company or any
of its subsidiaries, the Company represents that it has no knowledge of
any material failure to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative
and judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials.
(xvii) Tax Filings. The Company has filed all Federal, local
and foreign income tax returns which have been required to be filed or
has filed extensions and has paid all
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taxes indicated by said returns and all assessments received by it to
the extent that such taxes have become due and are not being contested
in good faith, except in each case to the extent that the failure to so
file or so pay would not materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company or any of its subsidiaries.
(xviii) Statements in Prospectus. The statements set forth in
the Prospectus as amended or supplemented under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Notes, and
under the captions "U.S. Federal Income Tax Considerations" and "Plan
of Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair in all material respects.
(xix) REIT Qualification. With respect to all tax periods
regarding which the Internal Revenue Service is or will be entitled to
assert any claim, the Company has met the requirements for
qualification as a real estate investment trust under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Company's present and contemplated operations, assets
and income continue to meet such requirements.
(xx) Investment Company Act. The Company is not and, after
giving effect to the offering and sale of the Notes as contemplated
herein, will not be an "investment company" or an entity "controlled"
by an "investment company as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxi) Commodity Exchange Act. The Notes, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(xxii) Ratings. The Notes are rated Baa3 by Moody's Investors
Service, Inc. and BBB by Standard & Poor's Rating Services.
(xxiii) The Operating Entities are the only "Significant
Subsidiaries" of the Company (as defined in Regulation S-X of the 1933
Act Regulations).
(b) Additional Certifications. Any certificate signed by any director
or officer of the Company and delivered to one or more Agents or to counsel for
the Agents in connection with an offering of Notes to one or more Agents as
principal or through an Agent as agent shall be deemed a representation and
warranty by the Company to such Agent or Agents as to the matters covered
thereby on the date of such certificate and at each Representation Date
subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by one or
more Agents as principal shall be made in accordance with terms agreed upon by
such Agent or Agents and the Company (which terms, unless otherwise agreed,
shall, to the extent applicable, include those terms specified in Exhibit A
hereto and be agreed upon orally, with written
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confirmation prepared by such Agent or Agents and mailed to the Company). An
Agent's commitment to purchase Notes as principal shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Unless the context otherwise requires, references herein to "this Agreement"
shall include the applicable agreement of one or more Agents to purchase Notes
from the Company as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow all or any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes from the Company by
one or more Agents as principal, such Agent or Agents shall specify the
requirements for the stand-off agreement, officers' certificate, opinions of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold through them as
agent. All Notes sold through an Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto, unless otherwise
agreed.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as may
be otherwise specified in the applicable Pricing Supplement, the Notes will be
issued in denominations of U.S. $1,000 or any larger amount that is an integral
multiple of U.S. $1,000. Administrative procedures with respect to the sale of
Notes shall be agreed upon from time to time by the Company, the Agents and the
Trustee (the "Procedures"). The Agents and the Company agree to perform, and the
Company agrees to cause the Trustee to agree to perform, their respective duties
and obligations specifically provided to be performed by them in the Procedures.
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SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the Commission
for filing of any amendment or supplement to the Prospectus (other than any
amendment, supplement or document relating solely to securities other than the
Notes), (iii) the receipt of any comments from the Commission with respect to
the Registration Statement or the Prospectus, (iv) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (vi) any
change in the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for a change
in the interest rate or formula applicable to the Notes or relating solely to
the issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise, and
will furnish to the Agents copies of any such amendment or supplement or other
documents proposed to be filed or used a reasonable time in advance of such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or other documents in a form to which the Agents or counsel for
the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents reasonably
request. The Company will furnish to the Agents as many copies of the Prospectus
(as amended or supplemented) as the Agents reasonably request so long as the
Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
11
(e) Prospectus Revisions -- Material Changes. Except as otherwise
provided in subsection (1) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company shall give immediate notice, confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in their capacity as
agents and to cease sales of any Notes they may then own as principal, and the
Company will promptly amend the Registration Statement and the Prospectus,
whether by filing documents pursuant to the 1934 Act or the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall finish such information to the
Agents, confirmed in writing, and shall cause the Prospectus to be amended or
supplemented, whether by filing documents pursuant to the 1934 Act or the 1933
Act or otherwise, to include or incorporate by reference financial information
with respect thereto and corresponding information for the comparable period of
the preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents pursuant to the
1934 Act or the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. As soon as practicable, the Company will make
generally available to its security holders an earnings statement which shall
satisfy the provisions of and provide the benefits contemplated by Section 11(a)
of the 1933 Act and Rule 158 under the 1933 Act.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such
12
states and other jurisdictions of the United States as the Agents may designate,
and will maintain such qualifications in effect for as long as may be required
for the distribution of the Notes; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Notes, will file all documents required to be filed
with the Commission pursuant to Sections 13, 14 or 15(d) of the 1934 Act within
the time periods prescribed by the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations").
(k) Stand-Off Agreement. If specified by the applicable Agent or Agents
in connection with a purchase of Notes from the Company as principal, between
the date of the agreement to purchase such Notes and the Settlement Date with
respect to such purchase, the Company will not, without the prior written
consent of such Agent or Agents, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Company
(other than the Notes that are to be sold pursuant to such agreement, commercial
paper in the ordinary course of business or assumptions of mortgages on acquired
properties).
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or an Agent shall
subsequently purchase Notes from the Company as principal.
(m) Continued REIT Qualification. The Company will continue to elect to
qualify as a "real estate investment trust" under the Code and will use its best
efforts to continue to qualify as a "real estate investment trust" for so long
as the Company's board of directors deems it in the best interest of the Company
and its shareholders to remain so qualified.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as agent of the
Company, will be subject to the accuracy of the representations and warranties
on the part of the Company herein and to the accuracy of the statements of the
Company's directors or officers made in any certificate furnished pursuant to
the provisions hereof, to the performance and observance by the Company of all
its covenants and agreements herein contained and to the following additional
conditions precedent:
13
(a) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(i) Opinion of Company Counsel. The favorable opinion of
Morrison & Foerster LLP, counsel to the Company, substantially to the
effect that:
(1) Each of the Company and the Operating Entities
has been duly incorporated or formed, as applicable, and is
validly existing as a corporation or limited partnership, as
the case may be, in good standing under the laws of the
jurisdiction in which is incorporated or formed, as
applicable, with full power and authority to own or lease, as
the case may be, and to its properties and conduct its
business as described in the Prospectus as amended or
supplemented.
(2) The Company is duly qualified to transact
business in the states of Arizona, Colorado, Delaware,
Florida, Georgia, Virginia, North Carolina, Ohio, Oregon,
South Carolina and Tennessee. Operating Partnership is duly
qualified as a foreign limited partnership and authorized to
transact business as a foreign limited partnership in the
States of California, Georgia, Maryland, Ohio, Oregon,
Virginia and Tennessee. Heritage OP is duly qualified as a
foreign limited partnership and authorized to transact
business as a foreign limited partnership in the states of
Arizona and Washington.
(3) This Agreement has been duly authorized, executed
and delivered by the Company.
(4) The Notes, in the form(s) certified by the
Company as of the date hereof, have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
duly authenticated by the Trustee in accordance with the
Indenture and issued and delivered pursuant to the provisions
of this Agreement and the Indenture against payment of
consideration therefor, will constitute legal, valid and
binding obligations of the Company entitled to the benefits
provided by the Indenture, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Notes payable other than in U.S.
dollars (or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(5) The Indenture has been duly authorized, executed
and delivered by the Company, is duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting
14
enforcement of creditors' rights generally or by general
equity principles, and further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any
Notes payable other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(6) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the
Notes, the Indenture and this Agreement with respect to the
Notes and the consummation of the transactions herein and
therein contemplated will not constitute a material breach of
the term of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject and which has been filed as an exhibit
to any of the Company's filings made pursuant to the Exchange
Act and incorporated by reference into the Prospectus, nor
will such actions result in any violation of the provisions of
the law, Amended and Restated Articles of Incorporation or
bylaws, as amended, of the Company or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its properties.
(7) The Registration Statement has become effective
under the 1933 Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued no proceedings for that purpose have
been initiated or threatened by the Commission.
(8) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; it being understood,
however, that no opinion need be rendered with respect to (a)
the financial statements, supporting schedules, footnotes and
other statistical and financial information contained therein
and (b) that part of the Registration Statement which
constitutes the Form T-1. To such counsel's knowledge, there
is no contract or other document of a character required to be
described in the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described or filed as
required. If applicable, the Rule 434 Prospectus conforms in
all material aspects to the requirements of Rule 434 under the
1933 Act Regulations.
(9) No authorization, approval or consent of any
governmental authority or agency is required in connection
with the transactions contemplated in this Agreement, except
such as have been obtained under the 1933 Act or the 1933 Act
Regulations and the Trust Indenture Act and such as may be
required under state securities or Blue Sky laws of any
jurisdiction in connection with the purchase and distribution
of the Notes by the Agents in the manner contemplated in this
Agreement and in the Prospectus and such other approvals as
have been obtained.
15
(10) Each document filed pursuant to the 1934 Act
(other than the financial statements, supporting schedules,
footnotes and other statistical and financial information
contained therein, as to which no opinion need be rendered)
and incorporated or deemed to be incorporated by reference in
the Prospectus complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations.
(11) The statements set forth in the Prospectus under
the captions "Description of Our Debt Securities",
"Description of Notes" and "U.S. Federal Income Tax
Considerations", insofar as they constitute a summary of
documents referred to therein or matters of law are correct in
all material respects.
(12) To such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the
Company or any of the Operating Entities is a party or of
which any property of the Company or any of the Operating
Entities is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
taken as a whole; and, to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(13) Neither the Company nor any of its subsidiaries
is an "investment company" as defined in the 1940 Act.
(ii) Opinion of Counsel to the Agents. The favorable opinion
of Sidley Austin Brown & Wood LLP, counsel to the Agents, in form and
substance reasonably acceptable to the Agents.
(iii) Opinion of Counsel to the Company. The favorable opinion
of Morrison & Foerster LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Agents, to the effect that
the Company has qualified to be taxed as a real estate investment trust
pursuant to Sections 856 through 860 of the Code for its most recently
ended fiscal year and for the three fiscal years immediately preceding
such year, and the Company's organization and contemplated method of
operation are such as to enable it to continue to so qualify for its
current fiscal year.
(iv) Disclosure Documents. In giving their opinions required
by subsections (a)(1) and (a)(2), respectively, of this Section,
Morrison & Foerster LLP and Sidley Austin Brown & Wood LLP shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement or any amendment
thereto (excluding (i) the financial statements, supporting schedules,
footnotes, and other financial and statistical information contained in
the Registration Statement or Prospectus, and (ii) that part of the
Registration Statement which constitutes
16
the Form T-1, as to which such counsel need express no belief), at the
time it became effective or at the time an Annual Report on Form 10-K
was filed by the Company with the Commission (whichever is later),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (excluding (i) the financial
statements, supporting schedules, footnotes, and other financial and
statistical information contained in the Registration Statement or
Prospectus, and (ii) that part of the Registration Statement which
constitutes the Form T-1, as to which such counsel need express no
belief), at the date hereof (or, if such opinion is being delivered in
connection with the purchase of Notes from the Company by one or more
Agents as principal pursuant to Section 7(c) hereof, at the date of any
agreement by such Agent or Agents to purchase Notes as principal and at
the Settlement Date with respect thereto, as the case may (included or)
includes an untrue statement of a material fact or (omitted or) omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(b) Officer's Certificate. At the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, President or any Vice
President and the principal financial officer or principal accounting officer of
the Company, dated as of the date hereof, to the effect that (i) since the
respective dates as of which information is given in the Prospectus or since the
date of any agreement by one or more Agents to purchase Notes from the Company
as principal, there has not been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate and (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate.
(c) Comfort Letter of Ernst & Young LLP. On the date hereof, the Agents
shall have received a letter from Ernst & Young LLP, dated as of the date hereof
and in form and substance satisfactory to the Agents, to the effect that: (i)
they are independent accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder; (ii) it is their opinion that the consolidated
financial statements and supporting schedules of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein comply in form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1934 Act and the related published rules and regulations thereunder;
(iii) based upon limited procedures set forth in detail in such letter (which
shall include, without limitation, the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 100, Interim Financial Information, with
respect to the unaudited condensed consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement), nothing came to their attention that caused them to
believe that (1) any material modifications should be made to the unaudited
financial statements and financial statement schedules of the Company and its
subsidiaries included or incorporated by reference in the
17
Registration Statement and the Prospectus for them to be in conformity with
accounting principles generally accepted in the United States, (2) the unaudited
financial statements and financial statement schedules of the Company included
or incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the related published rules and regulations
thereunder, or (3) at a specified date not more than three days prior to the
date of such letter, there has been any change in the capital stock of the
Company or in the secured and unsecured debt of the Company or any decrease in
the total assets of the Company, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date of
the most recent consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a specified date
not more than three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding year, in
rental income or in the total or per share amounts of net income or income
before gains (losses) on investments, minority interests, discontinued
operations and extraordinary items of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur or except for such exceptions
enumerated in such letter as shall have been agreed to by the Agents and the
Company; (iv) they have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to believe
that this information does not conform in all material respects with the
disclosure requirements of Items 301, 402 and 503(d) of Regulation S-K; and (v)
in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by the Agents, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of
18
Section 11 hereof, the provisions relating to governing law and forum set forth
in Section 14 and the provisions relating to parties set forth in Section 15
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent or Agents or to the purchaser or its agent, as the case may be, of
the Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rate or formula applicable to the Notes or relating solely to the issuance
and/or offering of securities other than the Notes), (ii) there is filed with
the Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating solely to the issuance and/or
offering of securities other than the Notes, unless the Agents shall otherwise
specify), (iii) (if required in connection with the purchase of Notes from the
Company by one or more Agents as principal) the Company sells Notes to such
Agent or Agents as principal or (iv) the Company sells Notes in a form not
previously certified to the Agents by the Company, the Company shall furnish or
cause to be furnished to the Agent(s), forthwith a certificate dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agent(s) to the effect that the statements contained
in the certificate referred to in Section 5(b) hereof which were last furnished
to the Agents are true and correct at the time of such amendment, supplement,
filing or sale, as the case
19
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in Section 5(b) hereof, modified
as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rate or formula applicable to the Notes, providing solely for the inclusion of
additional financial information, or, unless the Agents shall otherwise specify,
relating solely to the issuance and/or offering of securities other than the
Notes), (ii) there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K
relating solely to the issuance and/or offering of securities other than the
Notes, unless the Agents shall otherwise specify), (iii) (if required in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal or (iv)
the Company sells Notes in a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished forthwith to the
Agents and to counsel to the Agents the written opinion of Morrison & Foerster
LLP, counsel to the Company, or other counsel satisfactory to the Agents, dated
the date of filing with the Commission of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agents, of the same tenor as the
opinion referred to in Section 5(a)(1) hereof (and including the statement
required by Section 5(a)(4)), but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes), (ii) there is filed with the Commission any document
incorporated by reference into the Prospectus which contains additional
financial information, or (iii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to such Agent or Agents as principal, the Company shall cause Ernst &
Young LLP forthwith to furnish to the Agents a letter, dated the date of
effectiveness of such amendment, supplement or document with the Commission, or
the date of such sale, as the case may be, in form satisfactory to the Agents,
of the same tenor as the portions of the letter referred to in clauses (i) and
(ii) of Section 5(c) hereof but modified to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such letter, and of
the same general tenor as the portions of the letter referred to in clauses
(iii) and (iv) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Company.
20
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant
to Rule 434 of the 1933 Act Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any amendment or
supplement thereto) or the omission, or alleged omission therefrom, of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission
referred to in subsection (i) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by the
Agents), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company. Each Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Agent expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
21
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel
to the indemnified shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Agents shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Agents, as incurred, in such proportions that each Agent is
responsible for that portion represented by the percentage that the commission
or underwriting discount received by such Agent bears to the total sales price
from the sale of the Notes sold to or through such Agent that were the subject
of the claim for indemnification and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11 (f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Company.
22
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement (whether or not any sale of Notes is
consummated), including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form;
(d) The reasonable fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) The printing and delivery to the Agents in quantities as stated
above of copies of the Registration Statement and any amendments thereto, and of
the Prospectus and any amendments or supplements thereto, and the delivery by
the Agents of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, reproducing and delivery to the Agents of copies
of the Indenture and all amendments, supplements and modifications thereto;
(i) Any fees charged by nationally recognized statistical rating
organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company; and
23
(m) The cost of providing any CUSIP or other identification numbers for
the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason at any time by the Company or by an Agent, as
to itself, upon the giving of 30 days' written notice of such termination to the
other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may also terminate any agreement by such Agent or
Agents to purchase Notes from the Company as principal, by notice to the
Company, at any time at or prior to the Settlement Date relating thereto (i) if
there has been, since the date of such agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or other calamity or crisis or
escalation of any existing hostilities, the effect of which is such as to make
it, in the judgment of such Agent or Agents, impracticable or inadvisable to
market the Notes or enforce contracts for the sale of the Notes or a material
disruption has occurred in securities settlement or clearance services in the
United States, or (iii) if trading in any of the securities of the Company has
been suspended by the Commission or the New York Stock Exchange, or if trading
generally on either the New York Stock Exchange, the American Stock Exchange or
NASDAQ has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by Federal, New York or
Maryland authorities, (iv) if the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company as of the
date of such agreement shall have been lowered since that date or if any such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any debt
securities of the Company, or (v) if there shall have come to the attention of
such Agent or Agents any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of Notes,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, none of the parties
will have any liability to any other party hereto, except that (i) the Agents
shall be entitled to any commission
24
earned in accordance with the third paragraph of Section 3(b) hereof, (ii) if at
the time of termination (A) any Agent shall own any Notes purchased by it as
principal with the intention of reselling them or (B) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(h) hereof, the provisions of Section 10 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company or the Operating Entities:
United Dominion Realty Trust, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80219
Attention: President
Telecopy No.: (720) 283-2451
with a copy to:
Morrison & Foerster LLP
370 Seventeenth Street, Suite 5200
Denver, Colorado 80202
Attention: Warren L. Troupe, Esq.
Telecopy No.: (303) 592-1510
If to the Agents:
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No.: (212) 834-6081
Banc of America Securities LLC
9 West 57th Street
NY1-301-2M-01
New York, New York 10019
Attention: Transaction Management
Telecopy No.: (212) 847-5184
25
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Don Hansen - Registration Department
Telecopy No.: (212) 357-5505
McDonald Investments Inc.
127 Public Square
Cleveland, Ohio 44114
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Wachovia Capital Markets, LLC
301 S. College St., NC0600
Charlotte, North Carolina 28288
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against any Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
26
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
UNITED DOMINION REALTY TRUST, INC.
By: /s/ Ella S. Neyland
------------------------------------------
Name: Ella S. Neyland
----------------------------------------
Title: Executive Vice President & Treasurer
---------------------------------------
Confirmed and Accepted, as of the date first above written:
J.P. MORGAN SECURITIES INC.
By: /s/ CARL J. MEHLDAU JR.
------------------------------------------
Name: Carl J. Mehldau Jr.
----------------------------------------
Title: Vice President
---------------------------------------
Banc of America Securities LLC
By: /s/ PETER J. CARBONE
------------------------------------------
Name: Peter J. Carbone
----------------------------------------
Title: Vice President
---------------------------------------
/s/ GOLDMAN, SACHS & CO.
----------------------------------------------
(Goldman, Sachs & Co.)
MCDONALD INVESTMENTS INC.
By: /s/ NIDA RAZA
------------------------------------------
Name: Nida Raza
----------------------------------------
Title: Vice President
---------------------------------------
CITIGROUP GLOBAL MARKETS INC.
By: /s/ JEFFREY D. HOROWITZ
------------------------------------------
Name: Jeffrey D. Horowitz
----------------------------------------
Title: Managing Director
---------------------------------------
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ AMY KABATZNICK
------------------------------------------
Name: Amy Kabatznick
----------------------------------------
Title: Managing Director
---------------------------------------
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
LIBOR Reuters - Page:
LIBOR Telerate - Page:
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any: Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: __%, plus accrued interest, if any, from ______
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<Table>
<Caption>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- ---------------------------------------- ----------------
From 9 months to less than 1 year ...... .125%
From 1 year to less than 18 months ..... .150
From 18 months to less than 2 years .... .200
From 2 years to less than 3 years ...... .250
From 3 years to less than 4 years ...... .350
From 4 years to less than 5 years ...... .450
From 5 years to less than 6 years ...... .500
From 6 years to less than 7 years ...... .550
From 7 years to less than 10 years ..... .600
From 10 years to less than 15 years .... .625
From 15 years to less than 20 years .... .700
From 20 years to 30 years .............. .750
Greater than 30 years .................. *
</Table>
- ----------
* As agreed to by the Company and the applicable Agent at the time of sale.
Sch. A-1
EXHIBIT B
United Dominion Realty Trust, Inc.
Medium-Term Notes
due Nine Months or More From Date of Issue
[DATE]
[NAME AND ADDRESS OF AGENT]
Dear [__________]:
United Dominion Realty Trust, Inc., a Maryland corporation (the
"Company"), has previously entered into a Distribution Agreement dated as of
June 17, 2004 (the "Distribution Agreement"), between the Company and [LIST
NAMED AGENTS] (the "Existing Agents"), with respect to the issue and sale by the
Company of its Medium-Term Notes due Nine Months or More From Date of Issue (the
"Notes"), pursuant to an Indenture dated as of November 1, 1995, as amended or
modified from time to time, between the Company and Wachovia Bank, National
Association, as Trustee. A copy of the Distribution Agreement, including the
Administrative Procedures with respect to the issuance of the Notes (the
"Procedures"), is attached hereto.
Subject to and in accordance with the terms of the Distribution
Agreement and the Procedures, the Company hereby appoints you as an Agent under
the Distribution Agreement [IN CONNECTION WITH THE PURCHASE OF THE NOTES
DESCRIBED IN THE ACCOMPANYING PRICING SUPPLEMENT NO. ___, DATED __________, BUT
ONLY FOR THIS ONE REVERSE INQUIRY TRANSACTION]. Your appointment is made subject
to the terms and conditions applicable to Agents under the Distribution
Agreement [AND TERMINATES UPON PAYMENT FOR THE NOTES OR OTHER TERMINATION OF
THIS TRANSACTION].
Subject to the provisions hereof, this Agreement incorporates by
reference all of the terms and provisions of the Distribution Agreement,
including all schedules and exhibits thereto.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement, except that the terms "Agent", "Agents" and
"you", as used in the Distribution Agreement, shall be deemed to refer, where
applicable and for purposes of this Agreement, to the Existing Agents and you.
You and we each agree to perform our respective duties and obligations
specifically provided to be performed by each of us in accordance with the terms
and provisions of the Distribution Agreement and the Procedures.
1
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below. This action
will confirm your appointment and your acceptance and agreement to act as Agent
in connection with the issue and sale of the Notes under the terms and
conditions of the Distribution Agreement.
Very truly yours,
United Dominion Realty Trust, Inc.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
---------------------------------
CONFIRMED AND ACCEPTED:
as of the date first above written
[AGENT]
Name:
---------------------------------------
Title:
--------------------------------------
2