Attached files
file | filename |
---|---|
8-K - FORM 8-K - UDR, Inc. | d83463e8vk.htm |
EX-8.1 - EX-8.1 - UDR, Inc. | d83463exv8w1.htm |
EX-99.1 - EX-99.1 - UDR, Inc. | d83463exv99w1.htm |
EX-1.1 - EX-1.1 - UDR, Inc. | d83463exv1w1.htm |
EX-5.1 - EX-5.1 - UDR, Inc. | d83463exv5w1.htm |
Exhibit 8.2
[Letterhead of Kutak Rock LLP]
July 13, 2011
UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Re: | Certain United States Federal Income Tax Matters |
Ladies and Gentlemen:
We have acted as special tax counsel to UDR, Inc., a Maryland corporation (the Company), in
connection with the issuance and sale by the Company of an aggregate of 18,000,000 shares (the
Firm Shares) of the Companys common stock, $0.01 par value (the Common Stock), and an
additional 2,700,000 shares of Common Stock which may be issued and sold pursuant to an
over-allotment option (the Option Shares and together with the Firm Shares, the Shares),
pursuant to the terms of the Underwriting Agreement dated July 13, 2011 (the Underwriting
Agreement), among the Company on the one hand, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC
as the underwriters, on the other hand. The Shares are the subject of a registration statement on
Form S-3 (File No. 333-156002) filed by the Company with the Securities Exchange Commission (SEC)
on December 8, 2008 (the Original Registration Statement), under the Securities Act of 1933 (the
Securities Act), as amended by Post-Effective Amendment No. 1 thereto filed with the SEC on
October 15, 2010 (the Original Registration Statement as so amended is referred to herein as the
Registration Statement), the Prospectus dated December 8, 2008 contained in the Registration
Statement (the Base Prospectus), and a prospectus supplement to the Base Prospectus dated July
13, 2011 (the Prospectus Supplement and, together with the Base Prospectus, the Prospectus).
Capitalized terms not defined herein shall have the meanings ascribed to them in the certificate
(or incorporated therein by reference), dated of even date herewith (the Officers Certificate),
delivered to Kutak Rock LLP by the Company which provides certain representations by it relevant to
this opinion.
You have requested our opinion as to the status of the Company as a REIT for U.S. federal
income tax purposes. In connection with this opinion, we have examined and relied upon the
following, with your consent: (i) the Officers Certificate, (ii) the Registration Statement and
the Prospectus, and (iii) such other documents as we have considered relevant to our analysis. In
our review of such documents in connection with our opinion as expressed below, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed, photostatic, or electronic copies, and the
UDR, Inc.
July 13, 2011
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July 13, 2011
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authenticity of the originals of such copies. Where documents have been provided to us in draft
form, we have assumed that the final executed versions of such documents will not differ materially
from such drafts.
The Officers Certificate relates to, among other things, the actual and proposed operations
of the Company and the entities in which it holds, or has held, a direct or indirect interest.
These representations and covenants relate, in some cases, to transactions and investments for
which we did not act as the Companys primary counsel. For purposes of our opinion, we have not
independently verified all of the statements, representations and covenants set forth in the
Officers Certificate, the Registration Statement, or in any other document. We have,
consequently, assumed and relied on your representation that the statements, representations and
covenants contained in the Officers Certificate, the Registration Statement, and other documents,
or otherwise furnished to us, accurately and completely describe all material facts relevant to our
opinion. We have assumed that such statements, representations and covenants are true without
regard to any qualification as to knowledge, belief, intent, or materiality. Our opinion is
conditioned on the continuing accuracy and completeness of such statements, representations and
covenants. We are not aware of any facts inconsistent with such statements, representations and
covenants. We have, at the Companys request, also assumed for purposes of our opinion that any
legal opinion received by the Company on or before December 8, 2008, to the effect that the Company
was taxable as a REIT, is correct. Any material change or inaccuracy in the facts referred to, set
forth, or assumed herein or in the Officers Certificate, including the correctness of any such
prior legal opinion, may affect our conclusions set forth herein.
Our opinion is also based on the correctness of the following assumptions: (i) each of the
Company and the entities comprising the Company has been and will continue to be operated in
accordance with the laws of the jurisdiction in which it was formed and in the manner described in
the relevant organizational documents, (ii) there will be no changes in the applicable laws of the
State of Maryland or of any other jurisdiction under the laws of which any of the entities
comprising the Company have been formed, and (iii) each of the written agreements to which the
Company is a party has been and will be implemented, construed and enforced in accordance with its
terms.
In rendering our opinion, we have considered and relied upon the Internal Revenue Code of
1986, as amended (the Code), the regulations promulgated thereunder
(Regulations), administrative rulings and other Treasury interpretations of the Code and
the Regulations by the courts and the Internal Revenue Service (the IRS), all as they
exist at the date hereof. It should be noted that the Code, Regulations, judicial decisions, and
administrative interpretations are subject to change at any time and, in some circumstances, with
retroactive effect. A material change that is made after the date hereof in any of the foregoing
bases for our opinion could affect our conclusions set forth herein. In this regard, an opinion
of counsel with respect to an issue represents counsels best judgment as to the outcome on the
merits with respect to such
UDR, Inc.
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issue, is not binding on the IRS or the courts, and is not a guarantee that the IRS will not
assert a contrary position with respect to such issue or that a court will not sustain such a
position if asserted by the IRS.
We express no opinion as to the laws of any jurisdiction other than the federal laws of
the United States. We express no opinion on any issue relating to the Company or any
investment therein, other than as expressly stated herein.
Based on and subject to the foregoing, we are of the opinion that commencing with the
Companys taxable year that ended on December 31, 2007, the Company has been organized and
operated in conformity with the requirements for qualification as a REIT under the Code, and its
organization and its actual method of operation through the date of this letter has enabled, and
its proposed method of operation will enable, it to meet the requirements for qualification and
taxation as a REIT under the Code thereafter. As noted in the Registration Statement and the
Prospectus, the Companys qualification and taxation as a REIT depend upon its ability to meet,
through actual operating results, certain requirements relating to the sources of its income, the
nature of its assets, distribution levels and diversity of stock ownership, and various other
qualification tests imposed under the Code, the results of which are not reviewed by us.
Accordingly, no assurance can be given that the actual results of the Companys operation for any
one taxable year will satisfy the requirements for taxation as a REIT under the Code.
This opinion is furnished to you solely in connection with the Prospectus Supplement. This
opinion is solely for your benefit, and may not be relied upon by, nor may copies be delivered to,
any other person without our prior written consent. This opinion is expressed as of the date
hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal
developments or factual matters arising subsequent to the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Companys filings with
the SEC in connection with the offering of the Shares, and to the reference to our firm under the
heading Legal Matters in the Prospectus Supplement. In giving our consent, we do not thereby
admit that we come within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the SEC thereunder, nor do we thereby admit that we
are experts with respect to any part of the Prospectus within the meaning of the term experts as
used in the Securities Act or the rules and regulations of the SEC thereunder.
Very truly yours, |
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/s/ Kutak Rock LLP | ||||