UDR, INC. Medium-Term Notes, Series A Due Nine Months or More From Date of Issue Fully and Unconditionally Guaranteed by UNITED DOMINION REALTY, L.P. (a Delaware limited partnership) AMENDMENT NO. 3 TO THE THIRD AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Exhibit 1.2
UDR, INC.
Medium-Term Notes, Series A
Due Nine Months or More From Date of Issue
Fully and Unconditionally Guaranteed by
UNITED DOMINION REALTY, L.P.
(a Delaware limited partnership)
AMENDMENT NO. 3 TO THE
THIRD AMENDED AND RESTATED DISTRIBUTION AGREEMENT
May 7, 2020
|
BofA Securities, Inc. One Bryant Park |
Regions Securities LLC 0000 Xxxx Xxxxxxxxx Xx., XX, Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 |
|
BNY Mellon Capital Markets, LLC 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
RBC Capital Markets, LLC 000 Xxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxxx X. Xxxxxxx & Company, Inc. 00 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
SunTrust Xxxxxxxx Xxxxxxxx, Inc. 0000 Xxxxxxxxx Xxxx XX Xxxxxxx Xxxxxxx 00000 |
|
X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
TD Securities (USA) LLC 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
U.S. Bancorp Investments, Inc. 000 X. Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
|
MUFG Securities Americas Inc. 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxx Fargo Securities, LLC 000 X. Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
|
PNC Capital Markets LLC 000 Xxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 |
May 7, 2020
Page 2
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Distribution Agreement, dated September 1, 2011 (the “Agreement”), by and among UDR, Inc. (the “Company”) and United Dominion Realty, L.P. (the “Operating Partnership”) and Citigroup Global Markets Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities LLC, BofA Securities, Inc. (as successor in interest to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated), Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC, as amended by Amendment No. 1 thereto, dated July 29, 2014, and Amendment No. 2 thereto, dated April 27, 2017, by and among the Company, the Operating Partnership and Citigroup Global Markets Inc., X.X. Xxxxxx Securities LLC, BofA Securities, Inc. (as successor in interest to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated), Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC (collectively, the “Parties”). On March 3, 2020, the Company and the Operating Partnership filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”), on Form S-3 (File No. 333-236846) (the “Registration Statement”), in respect of certain of the Company’s and the Operating Partnership’s securities, in anticipation of the expiration of the Company’s automatic shelf registration statement on Form S-3 (File No. 333-217491) (the “Expiring Registration Statement”). The Parties wish to amend the Agreement to reference the Registration Statement instead of the Expiring Registration Statement and to reflect the addition of the Agents, representations and warranties, and sections noted below (this “Amendment”). The Parties therefore hereby agree as follows:
|
1. Commission File Number. The third paragraph of the Agreement is hereby amended so that the reference to the Commission file number of the automatic shelf registration statement on Form S-3 filed by the Company with the Commission shall be file number 333-236846. |
|
2. Effective Date. Section 2(a)(iii) of the Agreement is hereby amended to reflect that the effective date of the Registration Statement is May 7, 2020. |
|
3. Agents. All references to “the Agents” in the Agreement or in any other agreement, instrument or other document executed in connection with or under such Agreement or delivered pursuant thereto shall hereafter, for all purposes unless the context requires otherwise, refer exclusively to BofA Securities, Inc., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Xxxxxxxxx LLC, X.X. Xxxxxx Securities LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., PNC Capital Markets LLC, Regions Securities LLC, RBC Capital Markets, LLC, Xxxxxx X. Xxxxxxx & Company, Inc., SunTrust Xxxxxxxx Xxxxxxxx, Inc., TD Securities (USA) LLC, U.S. Bancorp Investments, Inc. and Xxxxx Fargo Securities, LLC. |
|
4. Cybersecurity. A new Section 2(a)(xxxi) to the Agreement is hereby created, which shall read as follows: |
(xxxi) Cybersecurity. Except as would not be expected to 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, (i) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’
May 7, 2020
Page 3
information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”); (ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; (iii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification; and (iv) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
|
5. Notices. Section 13 is hereby deleted in its entirety and replaced with the following: |
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 of the Operating Partnership to:
UDR, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention:Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention:Xxxxx X. Xxxx, Esq.
If to the Agents:
BofA Securities, Inc.
00 Xxxxxxxxxxx Xxxxx
NY1-050-12-01
Attention: High Grade Transaction Management/Legal
Facsimile: (000) 000-0000
May 7, 2020
Page 4
BNY Mellon Capital Markets, LLC
000 Xxxxxxxxx Xxxxxx, 3rd Floor
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Attention: Transaction Execution Group
Facsimile: (000) 000-0000
Xxxxxxxxx LLC
000 Xxxxxxx Xxxxxx
Attention: General Counsel
Facsimile: (000) 000-0000
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx, 3rd Floor
New York, New York 10179
Attention: Medium-Term Note Desk
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx, 00xx Floor
New York, New York 10036
Attention: Investment Banking Division
Facsimile: (000) 000-0000
MUFG Securities Americas Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
New York, New York 10020
Attention: Capital Markets Group
Facsimile: (000) 000-0000
PNC Capital Markets LLC
000 Xxxxx Xxxxxx, 00xx Floor
Pittsburgh, Pennsylvania 15222
Attention: Debt Capital Markets, Transaction Execution
Facsimile: (000) 000-0000
Regions Securities LLC
0000 Xxxx Xxxxxxxxx Xx., XX, Xxxxx 0000
Atlanta, Georgia 30309
RBC Capital Markets, LLC
May 7, 2020
Page 5
000 Xxxxx Xxxxxx, 0xx Xxxxx
New York, New York 10281
Attention: DCM Transaction Management
Facsimile: (000) 000-0000
Xxxxxx X. Xxxxxxx & Company, Inc.
00 Xxxxxxxx, 00xx Xxxxx
New York, New York 10006
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
0000 Xxxxxxxxx Xxxx XX
Atlanta, Georgia 30326
Attention: Investment Grade Debt Capital Markets
Facsimile: (000) 000-0000
TD Securities (USA) LLC
00 Xxxx 00xx Xxxxxx, 18th Floor
New York, New York 10019
Attention: Transaction Management Group
U.S. Bancorp Investments, Inc.
000 X. Xxxxx Xxxxxx, 00xx Floor
Charlotte, North Carolina 28202
Attention: Credit Fixed Income
Facsimile: (000) 000-0000
Xxxxx Fargo Securities, LLC
000 Xxxxx Xxxxx Xxxxxx, 0xx Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Facsimile: (000) 000-0000
|
6. Recognition of U.S. Special Resolution Regimes. A new Section 17 to the Agreement is hereby created, which shall read as follows: |
|
(a) In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
|
(b) In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised |
May 7, 2020
Page 6
under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States |
For purposes of this Section 17, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
|
7. Governing Law; Forum. This Amendment 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 of the agents referenced above in connection with or arising under this Amendment shall be brought solely in the state or federal court of appropriate jurisdiction located in the Borough of Manhattan, The City of New York. |
|
8. Counterparts. This Agreement shall be valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of the party by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. |
|
9. Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects. |
Terms used herein but not otherwise defined are used herein as defined in the Agreement.
If the foregoing is in accordance with your understanding of our agreement, please sign and return the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company, the Operating Partnership and each of you.
|
Very truly yours, |
||||
|
|
UDR, Inc. |
|
||
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx X. Xxxxxx |
|
|
|
Name: |
|
Xxxxxx X. Xxxxxx |
|
|
|
Title: |
|
Senior Vice President and Chief |
|
|
|
|
|
Financial Officer |
|
|
|
|
|
|
|
|
|
United Dominion Realty, L.P. |
|
||
|
|
|
|
|
|
|
|
By UDR, Inc., its general partner |
|
||
|
|
|
|
|
|
|
|
By: |
|
/s/ Xxxxxx X. Xxxxxx |
|
|
|
Name: |
|
Xxxxxx X. Xxxxxx |
|
|
|
Title: |
|
Senior Vice President and Chief |
|
|
|
|
|
Financial Officer |
|
Signature Page to Distribution Agreement Amendment No. 3
The foregoing Amendment No. 3 to
the Agreement is hereby confirmed
and accepted as of the date first
written above.
|
BOFA SECURITIES, INC. |
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx Xxxxxxxx |
|
|
|
Name: Xxxxxx Xxxxxxxx |
|
|
|
Title: Managing Director |
|
|
BNY MELLON CAPITAL MARKETS, LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxx Xxxxxxx |
|
|
|
Name: Xxx Xxxxxxx |
|
|
|
Title: MD |
|
|
CITIGROUP GLOBAL MARKETS INC.
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxx X. Xxxxxxx |
|
|
|
Name: Xxxx X. Xxxxxxx |
|
|
|
Title: Director |
|
|
XXXXXXXXX LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxx Xxxxx |
|
|
|
Name: Xxxx Xxxxx |
|
|
|
Title: Managing Director |
|
|
X.X.XXXXXX SECURITIES LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxxx |
|
|
|
Name: Xxxxxxx X. Xxxxxxx |
|
|
|
Title: Executive Director |
|
Signature Page to Distribution Agreement Amendment No. 3
|
XXXXXX XXXXXXX & CO. LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxx Xxxxxxx |
|
|
|
Name: Xxxx Xxxxxxx |
|
|
|
Title: Vice President |
|
|
MUFG SECURITIES AMERICAS INC.
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx Xxxxx |
|
|
|
Name: Xxxxxxx Xxxxx |
|
|
|
Title: Managing Director |
|
|
PNC CAPITAL MARKETS LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx Xxxxxxx |
|
|
|
Name: Xxxxxxx Xxxxxxx |
|
|
|
Title: Director |
|
|
REGIONS SECURITIES LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx Xxxx |
|
|
|
Name: Xxxxxx Xxxx |
|
|
|
Title: Vice President |
|
|
RBC CAPITAL MARKETS, LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxx Xxxxxxxx |
|
|
|
Name: Xxxxx Xxxxxxxx |
|
|
|
Title: Authorized Signatory |
|
|
XXXXXX X. XXXXXXX & COMPANY, INC.
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxxx X. Xxxxxxx |
|
|
|
Name: Xxxxxxxx X. Xxxxxxx |
|
|
|
Title: MD |
|
Signature Page to Distribution Agreement Amendment No. 3
|
SUNTRUST XXXXXXXX XXXXXXXX, INC.
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx Xxxxxxxxxx |
|
|
|
Name: Xxxxxx Xxxxxxxxxx |
|
|
|
Title: Director |
|
|
TD SECURITIES (USA) LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxx Xxxxxxxx |
|
|
|
Name: Xxxx Xxxxxxxx |
|
|
|
Title: Director |
|
|
U.S. BANCORP INVESTMENTS, INC.
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxxxxx |
|
|
|
Name: Xxxxxxx X. Xxxxxxxxx |
|
|
|
Title: Senior Vice President |
|
|
XXXXX FARGO SECURITIES, LLC
|
||
|
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx Xxxxxx |
|
|
|
Name: Xxxxxxx Xxxxxx |
|
|
|
Title: Director |
|
Signature Page to Distribution Agreement Amendment No. 3
