Form 10-Q
Table of Contents

 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
     
þ   QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2009
OR
     
o   TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                      to                     
Commission file number 1-10524
UDR, Inc.
(Exact name of registrant as specified in its charter)
     
Maryland
(State or other jurisdiction of
incorporation of organization)
  54-0857512
(I.R.S. Employer
Identification No.)
1745 Shea Center Drive, Suite 200, Highlands Ranch, Colorado 80129
(Address of principal executive offices) (zip code)
(720) 283-6120
(Registrant’s telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
             
Large accelerated filer þ    Accelerated filer o    Non-accelerated filer   o
(Do not check if a smaller reporting company)
  Smaller Reporting Company o 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No þ
The number of shares of the issuer’s common stock, $0.01 par value, outstanding as of May 1, 2009, was 150,460,532.
 
 

 

 


 

UDR, Inc.
INDEX
         
    PAGE  
 
       
PART I — FINANCIAL INFORMATION
       
 
       
Item 1. Condensed Consolidated Financial Statements
       
 
       
    3  
 
       
    4  
 
       
    5  
 
       
    6  
 
       
    7  
 
       
    29  
 
       
    42  
 
       
    43  
 
       
       
 
       
    44  
 
       
    44  
 
       
    53  
 
       
    54  
 
       
    54  
 
       
    55  
 
       
    55  
 
       
    56  
 
       
 Exhibit 12
 Exhibit 31.1
 Exhibit 31.2
 Exhibit 32.1
 Exhibit 32.2

 

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UDR, Inc.
CONSOLIDATED BALANCE SHEETS
(In thousands, except for share data)
(Unaudited)
                 
    March 31,     December 31,  
    2009     2008  
 
               
ASSETS
               
 
               
Real estate owned:
               
Real estate held for investment
  $ 5,693,789     $ 5,644,930  
Less: accumulated depreciation
    (1,146,487 )     (1,078,637 )
 
           
 
    4,547,302       4,566,293  
Real estate under development (net of accumulated depreciation of $544 and $52)
    209,040       186,771  
 
           
Total real estate owned, net of accumulated depreciation
    4,756,342       4,753,064  
Cash and cash equivalents
    37,132       12,740  
Marketable securities
    32,133        
Restricted cash
    8,617       7,726  
Deferred financing costs, net
    29,262       29,168  
Notes receivable
    207,300       207,450  
Investment in unconsolidated joint ventures
    47,415       47,048  
Other assets
    66,562       85,842  
Other assets — real estate held for disposition
    767       767  
 
           
Total assets
  $ 5,185,530     $ 5,143,805  
 
           
 
               
LIABILITIES AND STOCKHOLDERS’ EQUITY
               
 
               
Secured debt
  $ 1,717,244     $ 1,462,471  
Unsecured debt
    1,643,177       1,798,662  
Real estate taxes payable
    19,141       14,035  
Accrued interest payable
    21,574       20,744  
Security deposits and prepaid rent
    30,165       28,829  
Distributions payable
    49,817       57,144  
Deferred gains on the sale of depreciable property
    28,840       28,845  
Accounts payable, accrued expenses, and other liabilities
    67,044       71,395  
Other liabilities — real estate held for disposition
    1,274       1,204  
 
           
Total liabilities
    3,578,276       3,483,329  
 
               
Redeemable non-controlling interests in operating partnership
    69,290       108,092  
 
               
Stockholders’ equity
               
Preferred stock, no par value; 50,000,000 shares authorized 2,803,812 shares of 8.00% Series E Cumulative Convertible issued and outstanding (2,803,812 shares at December 31, 2008)
    46,571       46,571  
4,430,700 shares of 6.75% Series G Cumulative Redeemable issued and outstanding (4,430,700 shares at December 31, 2008)
    110,768       110,768  
Common stock, $0.01 par value; 250,000,000 shares authorized 149,096,743 shares issued and outstanding (148,781,115 shares at December 31, 2008)
    1,491       1,488  
Additional paid-in capital
    1,857,320       1,850,871  
Distributions in excess of net income
    (470,520 )     (448,737 )
Accumulated other comprehensive loss, net
    (11,055 )     (11,927 )
 
           
Total UDR, Inc. stockholders’ equity
    1,534,575       1,549,034  
Non-controlling interest
    3,389       3,350  
 
           
Total equity
    1,537,964       1,552,384  
 
           
Total liabilities and stockholders’ equity
  $ 5,185,530     $ 5,143,805  
 
           
See accompanying notes to consolidated financial statements.

 

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UDR, Inc.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
                 
    Three Months Ended  
    March 31,  
    2009     2008  
REVENUES
               
Rental income
  $ 150,615     $ 126,586  
Non-property income:
               
Other income
    5,024       4,627  
 
           
Total Revenues
    155,639       131,213  
 
           
 
               
EXPENSES
               
Rental expenses:
               
Real estate taxes and insurance
    20,020       12,494  
Personnel
    12,633       11,797  
Utilities
    8,367       7,083  
Repair and maintenance
    7,209       6,790  
Administrative and marketing
    3,333       3,286  
Property management
    4,142       3,481  
Other operating expenses
    1,496       1,004  
Real estate depreciation and amortization
    68,985       52,435  
Interest
               
Expense incurred
    36,509       40,506  
Gain on debt extinguishment
    (7,113 )     (4,739 )
Amortization of convertible debt premium
    1,296       1,670  
General and administrative
    9,855       9,769  
Other depreciation and amortization
    1,394       929  
 
           
Total Expenses
    168,126       146,505  
 
           
 
               
Loss from continuing operations
    (12,487 )     (15,292 )
 
               
Loss from unconsolidated entities
    (717 )     (374 )
Tax (expense)/benefit for the TRS
    (51 )     1,265  
 
           
Loss before discontinued operations
    (13,255 )     (14,401 )
(Loss)/income from discontinued operations
    (168 )     786,856  
 
           
Consolidated net (loss)/income
    (13,423 )     772,455  
Net loss/(income) attributable to non-controlling interests
    794       (48,736 )
 
           
Net (loss)/income attributable to UDR, Inc.
    (12,629 )     723,719  
Distributions to preferred stockholders — Series E (Convertible)
    (931 )     (931 )
Distributions to preferred stockholders — Series G
    (1,869 )     (2,278 )
 
           
Net (loss)/income available to common stockholders
  $ (15,429 )   $ 720, 510  
 
           
 
               
(Loss)/Earnings per weighted average common share — basic and diluted:
               
 
               
Loss from continuing operations available to common stockholders
  $ (0.10 )   $ (0.12 )
Income from discontinued operations
  $ (0.00 )   $ 5.17  
Net (loss)/income available to common stockholders
  $ (0.10 )   $ 5.05  
 
               
Common distributions declared per share
  $ 0.3050     $ 0.3050  
 
               
Weighted average number of common shares outstanding — basic
    147,614       142,547  
Weighted average number of common shares outstanding — diluted
    147,614       142,547  
See accompanying notes to consolidated financial statements.

 

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UDR, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands, except for share data)
(Unaudited)
                 
Three Months Ended March 31,   2009     2008  
 
               
Operating Activities
               
Consolidated net (loss)/income
  $ (13,423 )   $ 772,455  
Adjustments to reconcile consolidated net (loss)/income to net cash provided by operating activities:
               
Depreciation and amortization
    70,379       53,364  
Net loss/(gains) on the sale of depreciable property
    168       (767,146 )
Net gains on the sale of land
          (175 )
Gains on debt extinguishment
    (7,113 )     (4,739 )
Write off of bad debt
    915       498  
Write off of notes receivable and other assets
    439        
Loss from unconsolidated entities
    717       374  
Amortization of deferred financing costs and other
    1,243       2,551  
Amortization of deferred compensation
    2,339       1,744  
Amortization of convertible debt premium
    1,296       1,670  
Prepayments/(refunds) on income taxes
    414       (932 )
Changes in operating assets and liabilities:
               
Decrease in operating assets
    11,051       111  
Increase/(decrease) in operating liabilities
    3,132       (37,341 )
 
           
Net cash provided by operating activities
    71,557       22,434  
 
               
Investing Activities
               
Proceeds from sales of real estate investments, net
          1,451,047  
Disbursements related to notes receivable
          (7,152 )
Purchase of marketable securities
    (30,936 )      
Acquisition of real estate assets (net of liabilities assumed) and initial capital expenditures
          (513,134 )
Development of real estate assets
    (53,583 )     (23,978 )
Capital expenditures and other major improvements — real estate assets, net of escrow reimbursement
    (10,269 )     (31,859 )
Capital expenditures — non-real estate assets
    (3,343 )     (4,794 )
Investment in unconsolidated joint venture
    (1,084 )     89  
Purchase deposits on pending real estate acquisitions
          (1,021 )
Change in funds held in escrow from IRC Section 1031 exchanges
          (292,080 )
 
           
Net cash (used in)/provided by investing activities
    (99,215 )     577,118  
 
               
Financing Activities
               
Payments on secured debt
    (15,196 )     (67,625 )
Proceeds from the issuance of secured debt
    269,969       12,408  
Proceeds from the issuance of unsecured debt
          240,000  
Payments on unsecured debt
    (200,031 )     (262,701 )
Net (repayment)/proceeds of revolving bank debt
    51,100       (309,500 )
Payment of financing costs
    (3,330 )     (2,977 )
(Payments on)/proceeds from the issuance of common stock
    (335 )     617  
Repayment of the investment of performance based programs
          (326 )
Distributions paid to non-controlling interests
    (4,404 )     (2,962 )
Distributions paid to preferred stockholders
    (2,800 )     (3,209 )
Distributions paid to common stockholders
    (42,125 )     (43,987 )
Repurchase of common stock
    (798 )     (102,322 )
 
           
Net cash provided by/(used in) financing activities
    52,050       (542,584 )
 
               
Net increase in cash and cash equivalents
    24,392       56,968  
Cash and cash equivalents, beginning of period
    12,740       3,219  
 
           
Cash and cash equivalents, end of period
  $ 37,132     $ 60,187  
 
           
 
               
Supplemental Information:
               
Interest paid during the period
  $ 39,376     $ 42,041  
Non-cash transactions:
               
Conversion of operating partnership minority interests to common stock
(110,631 shares in 2009 and 7,150 shares in 2008)
    4,225       53  
Issuance of restricted stock awards
    3       4  
Issuance of note receivable upon the disposition of real estate
          200,000  
Secured debt assumed with the acquisition of properties, net of fair value adjustment
          68,728  
See accompanying notes to consolidated financial statements.

 

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UDR, Inc.
CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY AND COMPREHENSIVE INCOME
(In thousands, except share data)
(unaudited)
                                                                         
                                                    Accumulated              
                                            Distributions in     Other              
    Preferred Stock     Common Stock     Paid-in     Excess of     Comprehensive     Non-controlling        
    Shares     Amount     Shares     Amount     Capital     Net Income     Income/(Loss)     interest     Total  
Balance, December 31, 2007
    8,203,812     $ 181,571       144,336,438     $ 1,443     $ 1,753,472     $ (916,280 )   $ (814 )   $     $ 1,019,392  
 
                                                     
Cumulative effect of change in accounting principles
                                    32,602       (110,834 )     44     $ 3,148       (75,040 )
Balance January 1, 2008
    8,203,812     $ 181,571       144,336,438     $ 1,443     $ 1,786,074     $ (1,027,114 )   $ (770 )   $ 3,148       944,352  
Comprehensive Income
                                                                       
Net income
                                  697,589             202       697,791  
Other comprehensive income
                                                                       
Unrealized loss on derivative financial instruments
                                        (11,901 )             (11,901 )
Allocation to redeemable non-controllable interests
                                        744             744  
 
                                                     
Comprehensive income
                                            697,589       (11,157 )     202       686,634  
 
                                                     
Issuance of common and restricted shares
                682,650       7       9,191                         9,198  
Issuance of common shares through public offering
                8,661,201       87       183,085                         183,172  
Purchase of common shares
                (6,495,576 )     (65 )     (140,468 )                       (140,533 )
Redemption of 969,300 shares of 6.75% Series G Cumulative Redeemable Shares
    (969,300 )     (24,232 )                 829       3,056                   (20,347 )
Adjustment for conversion of non-controlling interests of unitholders in operating partnerships
                1,596,402       16       12,160                         12,176  
Common stock distributions declared ($2.2900 per share)
                                  (175,271 )                 (175,271 )
Preferred stock distributions declared-Series E ($1.3288 per share)
                                  (3,724 )                 (3,724 )
Preferred stock distributions declared-Series G ($1.6875 per share)
                                  (8,414 )                 (8,414 )
Adjustment to reflect redeemable non-controlling OP units at redemption value
                                  65,141                   65,141  
 
                                                     
Balance, December 31, 2008
    7,234,512     $ 157,339       148,781,115     $ 1,488     $ 1,850,871     $ (448,737 )   $ (11,927 )   $ 3,350     $ 1,552,384  
 
                                                     
Comprehensive Income
                                                                       
Net loss
                                  (12,629 )           39       (12,590 )
Other comprehensive income
                                                                       
Change in fair value of marketable securities
                                        765             765  
Unrealized gain on derivative financial instruments
                                        154             154  
Allocation to redeemable non-controllable interests
                                        (47 )           (47 )
 
                                                     
Comprehensive income
                                            (12,629 )     872       39       (11,718 )
 
                                                     
Issuance of common and restricted shares
                110,631       1       2,082                         2,083  
Purchase of common shares
                (100,000 )     (1 )     (797 )                       (798 )
Adjustment for conversion of non-controlling interest in Series B and C LLC
                            938                         938  
Adjustment for conversion of non-controlling interests of unitholders in operating partnerships
                304,997       3       4,226                         4,229  
Common stock distributions declared ($0.305 per share)
                                  (44,061 )                 (44,061 )
Preferred stock distributions declared-Series E ($0.3322 per share)
                                  (931 )                 (931 )
Preferred stock distributions declared-Series G ($0.421875 per share)
                                  (1,869 )                 (1,869 )
Adjustment to reflect redeemable non-controlling OP units at redemption value
                                  37,707                     37,707  
 
                                                     
Balance, March 31, 2009
    7,234,512     $ 157,339       149,096,743     $ 1,491     $ 1,857,320     $ (470,520 )   $ (11,055 )   $ 3,389     $ 1,537,964  
 
                                                     
See accompanying notes to consolidated financial statements.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
1. CONSOLIDATION, BASIS OF PRESENTATION AND ACCOUNTING POLICIES
Consolidation and Basis of Presentation
UDR, Inc., collectively with our consolidated subsidiaries (“we”, “our”, “us”, “the Company” or “UDR”) is a self-administered real estate investment trust, or REIT, that owns, acquires, renovates, develops, and manages apartment communities nationwide. The accompanying consolidated financial statements include the accounts of UDR and its subsidiaries, including United Dominion Realty, L.P. (the “Operating Partnership”), and Heritage Communities L.P. (the “Heritage OP”). As of March 31, 2009, there were 179,863,065 units in the Operating Partnership outstanding, of which 172,224,444 units or 96% were owned by UDR and 7,638,621 units or 4% were owned by limited partners. As of March 31, 2009, there were 6,264,460 units in the Heritage OP outstanding, of which 6,070,476 units or 97% were owned by UDR and 193,984 units or 3% were owned by limited partners. The consolidated financial statements of UDR include the non-controlling interests of the unitholders in the Operating Partnership and the Heritage OP.
The accompanying interim unaudited consolidated financial statements have been prepared according to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States have been condensed or omitted according to such rules and regulations, although management believes that the disclosures are adequate to make the information presented not misleading. In the opinion of management, all adjustments and eliminations necessary for the fair presentation of our financial position as of March 31, 2009, and results of operations for the three months ended March 31, 2009 and 2008 have been included. Such adjustments are normal and recurring in nature. The interim results presented are not necessarily indicative of results that can be expected for a full year. The accompanying interim unaudited consolidated financial statements should be read in conjunction with the audited consolidated financial statements and related notes appearing in UDR’s Annual Report on Form 10-K for the year ended December 31, 2008, filed with the Securities and Exchange Commission on February 26, 2009.
The accompanying interim unaudited consolidated financial statements are presented in accordance with U.S. generally accepted accounting principles (“GAAP”). GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent liabilities at the dates of the interim unaudited consolidated financial statements and the amounts of revenues and expenses during the reporting periods. Actual amounts realized or paid could differ from those estimates. All significant intercompany accounts and transactions have been eliminated in consolidation. Certain previously reported amounts have been reclassified to conform to the current financial statement presentation.
Accounting Policies
Income Taxes
Due to the structure of the Company as a REIT and the nature of the operations for the operating properties, no provision for federal income taxes has been provided for at UDR. Historically, the Company has generally incurred only state and local income, excise and franchise taxes. UDR elected for certain consolidated subsidiaries to be treated as Taxable REIT Subsidiaries (“TRS”) relating to the Company’s developer, RE3 and condominium conversion activities.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Income taxes for our TRS are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities from a change in tax rate is recognized in earnings in the period of the enactment date. The Company’s deferred tax assets are generally the result of differing depreciable lives on capitalized assets and timing of expense recognition for certain accrued liabilities. As of March 31, 2009, UDR has recorded a net current and deferred tax asset of approximately $8.3 million and recorded income tax expense, which is reflected in other income on the Company’s interim unaudited Consolidated Statements of Operations of $51,000 for the three months ended March 31, 2009.
UDR adopted the Financial Accounting Standards Board (“FASB”) Interpretation 48, “Accounting for Uncertainty in Income Taxes-An Interpretation of FASB Statement No. 109” (“FIN 48”), on January 1, 2007. FIN 48 defines a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. FIN 48 also provides guidance on derecognition, classification, interest and penalties, accounting for interim periods, disclosure and transition.
The Company recognizes our tax positions and evaluates them using a two-step process. First, we determine whether a tax position is more likely than not (greater than 50 percent probability) to be sustained upon examination, including resolution of any related appeals or litigation processes, based on the technical merits of the position. Then the Company will determine the amount of benefit to recognize and record the amount of the benefit that is more likely than not to be realized upon ultimate settlement.
As a result of the implementation of FIN 48, UDR recognized no material adjustments to liabilities related to unrecognized income tax benefits. At the adoption date, UDR’s TRS had $538,000 of net unrecognized tax benefits, which would favorably impact our effective tax rate if recognized. UDR had no unrecognized tax benefits, accrued interest or penalties at March 31, 2009. UDR and its subsidiaries are subject to U.S. federal income tax as well as income tax of multiple state jurisdictions. The tax years 2004 — 2008 remain open to examination by the major taxing jurisdictions to which we are subject. When applicable, UDR recognizes interest and/or penalties related to uncertain tax positions in income tax expense.
Real Estate Sales
The Company accounts for sales of real estate in accordance with FASB Statement of Financial Accounting Standards (SFAS) No. 66, “Accounting for Sales of Real Estate” (“SFAS 66”). For sales transactions meeting the requirements for full accrual profit recognition, such as the Company no longer having continuing involvement in the property, we remove the related assets and liabilities from our consolidated balance sheet and record the gain or loss in the period the transaction closes. For sale transactions that do not meet the full accrual sale criteria due to our continuing involvement, we evaluate the nature of the continuing involvement and account for the transaction under an alternate method of accounting.
Sales of real estate to entities in which we retain or otherwise own an interest are accounted for as partial sales. If all other requirements for recognizing profit under the full accrual method have been satisfied and no other forms of continuing involvement are present, we recognize profit proportionate to the outside interest in the buyer and will defer the gain on the interest we retain. The Company will recognize any deferred gain when the property is then sold to a third party. In transactions accounted by us as partial sales, we determine if the buyer of the majority equity interest in the venture was provided a preference as to cash flows in either an operating or a capital waterfall. If a cash flow preference has been provided, we recognize profit only to the extent that proceeds from the sale of the majority equity interest exceed costs related to the entire property.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Marketable Securities
Marketable securities represent publicly traded debt securities and are classified as “available for sale” and carried at fair value, with unrealized gains and losses reported as a separate component of stockholders’ equity. Declines in the value of public and private investments that management determines are other than temporary are recorded as a provision for loss on investments. The amortization of any discount and interest income are recorded in “Other Income” on the Consolidated Statement of Operations.
Recent Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS 157”), that became effective for our fiscal year beginning January 1, 2008. SFAS 157 defines fair value, establishes a framework for measuring fair value in accordance with GAAP and expands disclosures about fair value measurement. SFAS 157 applies to other accounting pronouncements that require or permit fair value measurements but does not require any new fair value measurements. In February 2008, the FASB issued FASB Staff Position No. FAS 157-2, “Effective Date of FASB Statement No. 157” (“FSP 157-2”), that delays the effective date of SFAS 157’s fair value measurement requirements for nonfinancial assets and liabilities that are not required or permitted to be measured at fair value on a recurring basis. The adoption of SFAS 157 for financial assets and liabilities, as of January 1, 2008, did not have a material impact on our financial position or operations. Fair value measurements identified in FSP 157-2 was effective for our fiscal year beginning January 1, 2009 and did not have a material impact on in the first quarter of 2009.
In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities” (“SFAS 159”), that became effective for our fiscal year beginning January 1, 2008. SFAS 159 allows an entity to elect to measure certain financial instruments at fair value. If this irrevocable election is made, an entity may apply SFAS 159 on an instrument by instrument basis with a few exceptions and report any change in the fair value of the instrument in earnings. The Company opted to not adopt SFAS 159.
In December 2007, the FASB issued SFAS No. 141R, “Business Combinations,” (“SFAS 141R”). SFAS 141R establishes principles and requirements for how the acquirer of a business recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, and any non-controlling interest in the acquiree. The statement also provides guidance for recognizing and measuring the goodwill acquired in the business combination, recognizing assets acquired and liabilities assumed arising from contingencies, and determining what information to disclose to enable users of the financial statement to evaluate the nature and financial effects of the business combination. SFAS 141R is effective for fiscal years beginning after December 15, 2008. We believe that the adoption of SFAS 141R could materially impact our future consolidated financial position and results of operations depending on the Company’s acquisition activity as certain acquisition costs that have historically been capitalized as part of the basis of the real estate and amortized over the real estate’s useful life will now be expensed as incurred. SFAS 141R did not have a material impact on our financial statements in the first quarter of 2009.
In December 2007, the FASB issued SFAS No. 160, “Non-controlling Interests in Consolidated Financial Statements” (“SFAS 160”). SFAS 160 amends Accounting Research Bulletin 51, “Consolidated Financial Statements” to establish accounting and reporting standards for the non-controlling (minority) interest in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that a non-controlling interest in a subsidiary should be reported as equity in the consolidated financial statements. Consolidated net income should include the net income for both the parent and the non-controlling interest with disclosure of both amounts on the consolidated statement of operations. The calculation of earnings per share will continue to be based on income amounts attributable to the parent. SFAS 160 is effective for us on January 1, 2009. As part of our adoption of SFAS 160, we have retroactively adopted the measurement provisions of EITF Topic D-98,

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
“Classification and Measurement of Redeemable Securities.” Upon adoption, we adjusted the carrying amount of the operating partnership units by recognizing a $101.0 million increase to “Redeemable non-controlling interest in operating partnership” on the balance sheet and a corresponding decrease in “Distributions in Excess of Net Income,” which was accounted for as a cumulative effect adjustment on January 1, 2008. In addition, the Company allocated a pro-rated share of “Accumulated Other Comprehensive Loss” to the redeemable non-controlling interests in operating partnership of $44,000 on January 1, 2008.
Statement of Financial Accounting Standards No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133” (SFAS 161), amends and expands the disclosure requirements of FASB Statement No. 133 (SFAS 133) with the intent to provide users of financial statements with an enhanced understanding of: (a) how and why an entity uses derivative instruments, (b) how derivative instruments and related hedged items are accounted for under SFAS 133 and its related interpretations, and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows. SFAS 161 requires qualitative disclosures about objectives and strategies for using derivatives, quantitative disclosures about the fair value of and gains and losses on derivative instruments, and disclosures about credit-risk-related contingent features in derivative instruments.
In May 2008, the FASB issued FASB Staff Position APB 14-1, “Accounting for Convertible Debt Instruments That May Be Settled in Cash upon Conversion” (“APB 14-1”). APB 14-1 requires entities that issued certain convertible debt instruments that may be settled or partially settled in cash on conversion to separately account for the liability (debt) and equity (conversion option) components of the instrument in a manner that reflects the entity’s nonconvertible debt borrowing rate. APB 14-1 requires that an entity determine the estimated fair value of a similar debt instrument as of the date of the issuance without the conversion feature but inclusive of any other embedded features such as puts and calls and assign that value to the debt component of the instrument, which would result in a discount being recorded. The debt would subsequently be accreted to its par value over its expected life using the market rate at the date of issuance. The residual value between the initial proceeds and the value allocated to the debt would be reflected in equity as additional paid in capital. APB 14-1 is effective for fiscal years beginning after December 15, 2008 and would be applied retrospectively to both new and existing convertible instruments. Due to the adoption of APB 14-1, the Company recognized a decrease in “Distributions in Excess of Net Income” of $9.8 million on January 1, 2008 for the cumulative change in interest expense. We also recorded a $32.6 million increase to “Additional Paid in Capital” for the allocation of the equity component. The Company recognized an additional $3.0 million and $1.7 million of interest expense in the quarter ended March 31, 2009 and 2008, respectively due to the adoption of APB 14-1.
We adopted the provisions of FASB FSP EITF 03-6-1, “Determining Whether Instruments Granted in Share-Based Payment Transactions are Participating Securities”, or the FSP, effective January 1, 2009. The FSP clarifies that unvested share-based payment awards that participate in dividends similar to shares of common stock or operating partnership units should be treated as participating securities. The FSP affects the computation of basic and diluted earnings per share for unvested restricted stock awards which entitle the holders to dividends. The FSP did not affect earnings per share amounts for the three months ended March 31, 2009 because we reported a net loss for the period and accordingly had no undistributed earnings. The FSP had an immaterial affect on the earnings per share amount for the three months ended March 31, 2008. We do not expect the FSP to have a material effect on future earnings per share amounts.
In May 2008, the FASB issued SFAS 162, “The Hierarchy of Generally Accepted Accounting Principles” (“SFAS 162”). SFAS 162 provides the framework for selecting the principles to be used in the preparation of financial statement in conformity with generally accepted accounting principles. SFAS 162 will become effective 60 days following the Securities and Exchange Commission’s approval. We believe that the adoption of SFAS 162 will not have a material impact on our consolidated financial statements.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
2. REAL ESTATE
Real estate assets owned by the Company consist of income producing operating properties, properties under development, land held for future development and properties deemed as held for sale. As of March 31, 2009 the Company owned and consolidated 161 communities in 10 states plus the District of Columbia totaling 44,571 apartment homes. The following table summarizes the carrying amounts for our real estate owned (at cost) as of March 31, 2009 and December 31, 2008 (dollar amounts in thousands):
                 
    March 31, 2009     December 31, 2008  
 
               
Land
  $ 1,564,905     $ 1,567,737  
Depreciable property — held for investment:
               
Building and improvements
    3,903,980       3,859,245  
Furniture, fixtures and equipment
    224,904       217,948  
Under development:
               
Land
    52,360       52,294  
Construction in progress
    157,224       134,529  
 
           
Real estate owned
  $ 5,903,373     $ 5,831,753  
Accumulated depreciation
    (1,147,031 )     (1,078,689 )
 
           
Real estate owned, net
  $ 4,756,342     $ 4,753,064  
 
           
3. DISCONTINUED OPERATIONS
Discontinued operations represent properties that UDR has either sold or which management believes meet the criteria to be classified as held for sale. In order to be classified as held for sale and reported as discontinued operations, a property’s operations and cash flows have or will be divested to a third party by the Company whereby UDR will not have any significant continuing involvement in the ownership or operation of the property after the sale or disposition. The results of operations of the property are presented as discontinued operations for all periods presented and do not impact the net earnings reported by the Company. Once a property is deemed as held for sale, depreciation is no longer recorded. However, if the Company determines that the property no longer meets the criteria of held for sale the Company will recapture any unrecorded depreciation for the property. The assets and liabilities of properties deemed as held for sale are presented separately on the Consolidated Balance Sheets. Properties deemed as held for sale are reported at the lower of their carrying amount or their estimated fair value less the costs to sell the assets.
UDR did not dispose of any communities during the three months ended March 31, 2009, nor did we have any classified as held for disposition at March 31, 2009. For the three months ended March 31, 2008, UDR sold 84 communities with a total of 25,140 apartment homes, 22 condominiums from two communities with a total of 640 condominiums, and one parcel of land. The results of operations for these properties are classified on the Consolidated Statements of Operations in the line item titled “Income from discontinued operations”, for the three months ended March 31, 2009 and 2008.
In conjunction with the sale of the 84 communities during the first quarter of 2008, the Company received a note in the amount of $200 million. The note which is secured by a pledge, security agreement and a guarantee from the buyer’s parent entity bears a fixed rate of interest of 7.5% per annum. On May 4, 2009, the Company received from the buyer payment in full of the $200 million note, plus accrued and unpaid interest thereon in the amount of $123,287.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
UDR has elected TRS status for certain of its corporate subsidiaries, primarily those engaged in condominium conversion and development activities. For the three months ended March 31, 2009 and 2008, UDR recognized an income tax expense of $51,000 and an income tax benefit of $1.3 million, respectively. For the three months ended March 31, 2009 and 2008, the tax provision included in discontinued operations was $0 and $126,000, respectively.
The income attributable to discontinued operations is summarized as follows (dollars in thousands):
                 
    Three Months Ended  
    March 31,  
    2009     2008  
 
               
Rental income
  $     $ 38,985  
Non-property income
          183  
 
           
 
          39,168  
 
               
Rental expenses
          15,807  
Property management fee
          1,072  
Real estate depreciation
           
Interest
          2,579  
Other expenses
           
 
           
 
          19,458  
 
               
Income before net gain on the sale of depreciable property
          19,710  
Net (loss) gain on the sale of depreciable property, excluding RE3
    (168 )     767,962  
RE3 gain/(loss) on sale of real estate, net of tax
          (816 )
 
           
(Loss)/income from discontinued operations
  $ (168 )   $ 786,856  
 
           
4. JOINT VENTURES
UDR has entered into joint ventures with unrelated third parties for real estate assets that are either consolidated and included in real estate owned on our Consolidated Balance Sheets or are accounted for under the equity method of accounting, which are not consolidated and are included in investment in unconsolidated joint ventures on our Consolidated Balance Sheets. The Company consolidates an entity in which we own less than 100% but control the joint venture as well as any variable interest entity where we are the primary beneficiary. In addition, the Company consolidates any joint venture in which we are the general partner or managing member and the third party does not have the ability to substantively participate in the decision-making process nor do they have the ability to remove us as general partner or managing member, without cause.
UDR’s joint ventures, some of which are variable interest entities, are funded with a combination of debt and capital. The allocation between debt and capital will vary by joint venture with our investments having a weighted average of 11% of the initial total assets as contributed capital.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Unconsolidated Joint Ventures
The Company recognizes earnings or losses from our investments in unconsolidated joint ventures consisting of our proportionate share of the net earnings or loss of the joint venture. In addition, we may earn fees for providing management and development services to the unconsolidated joint ventures. As of March 31, 2009, UDR had investments in the following unconsolidated development joint ventures which are accounted for under the equity method of accounting:
UDR is a partner in a joint venture to develop a site in Bellevue, Washington. At closing, we owned 49% of the joint venture which the Company proposes to develop that involves building a 430 home high rise apartment building with ground floor retail. Our initial investment was $5.7 million. Our investment at March 31, 2009 and December 31, 2008 was $10.4 million and $10.2 million, respectively. The joint venture has no current plans to continue with the development.
UDR is a partner in a joint venture which will develop 274 apartment homes in the central business district of Bellevue, Washington. Construction began in the fourth quarter of 2006 and is scheduled for completion in the third quarter of 2009. At closing, we owned 49% of the joint venture. Our initial investment was $10.0 million. Our investment at March 31, 2009 and December 31, 2008 was $10.5 million and $9.9 million, respectively.
UDR is a partner with an unaffiliated third party in a joint venture which owns and operates a 23-story, 166 home high-rise apartment community in the central business district of Bellevue, Washington. At closing, UDR owned 49% of the joint venture. Our initial investment was $11.8 million. Our investment at March 31, 2009 and December 31, 2008 was $10.4 million.
UDR and an unaffiliated third party in November 2007 formed a joint venture which owns and operates various properties located in Texas. In November 2007, UDR sold nine operating properties, consisting of 3,690 units, and contributed one property under development to the joint venture. The property under development has 302 units and was completed in 2008 and commenced lease up at that time. UDR contributed cash and property equal to 20% of the fair value of the properties. The unaffiliated member contributed cash equal to 80% of the fair value of the properties comprising the joint venture, which was then used to purchase the nine operating properties from UDR. Our initial investment was $20.4 million. Our investment at March 31, 2009 and December 31, 2008 was $16.2 million and $16.5 million, respectively.
The operating results of the properties sold to the Texas joint venture are included as a component of continuing operations on the Consolidated Statement of Operations as UDR will continue to recognize significant cash flows from management fees over the term of the joint venture.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Summarized financial information relating to 100% of all the unconsolidated joint ventures operations (not just our proportionate share) is presented below for the three months ended March 31, (dollars in thousands):
                 
    Three Months Ended March 31,  
    2009     2008  
 
               
Revenues
  $ 11,520     $ 10,632  
Real estate depreciation and amortization
    5,155       5,630  
Net loss
    (2,886 )     (3,798 )
Combined summary balance sheets relating to 100% of all the unconsolidated joint ventures (not just our proportionate share) is presented below as of March 31, 2009 and December 31, 2008, (dollars in thousands):
                 
    March 31,     December 31,  
    2009     2008  
Real estate
  $ 555,257     $ 544,541  
Total assets
    534,422       534,751  
Amount due to UDR
    1,594       3,898  
Third party debt
    380,380       373,353  
Total liabilities
    397,055       397,135  
Equity
    137,367       137,620  
As of March 31, 2009, the Company had deferred profit from the sale of properties of $28.8 million, which the Company will not recognize until the underlying property is sold to a third party. The Company recognized $474,000 and $565,000 of management fees for our involvement in the joint ventures for the three months ended March 31, 2009 and 2008, respectively.
The Company may be required to make additional capital contributions to certain of our joint ventures should additional capital contributions be necessary to fund development costs or operating shortfalls.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
5. SECURED DEBT
Our secured debt instruments generally feature either monthly interest and principal or monthly interest-only payments with balloon payments due at maturity. For purposes of classification of the following table, variable rate debt with a derivative financial instrument designated as a cash flow hedge is deemed as fixed rate debt due to the Company having effectively established the interest rate for the underlying debt instrument. Secured debt on continuing and discontinued operations, which encumbers $2.7 billion or 45% of UDR’s real estate owned based upon book value ($3.2 billion or 55% of UDR’s real estate owned is unencumbered) consists of the following as of March 31, 2009 (dollars in thousands):
                                         
                    Weighted     Weighted     Number of  
    Principal Outstanding     Average     Average     Communities  
    March 31,     December 31,     Interest Rate     Years to Maturity     Encumbered  
    2009     2008     2009     2009     2009  
Fixed Rate Debt
                                       
Mortgage notes payable
  $ 501,928     $ 476,810       4.85 %     2.7       18  
Tax-exempt secured notes payable
    13,325       13,325       5.30 %     21.9       1  
Fannie Mae credit facilities
    665,994       666,642       5.52 %     6.7       20  
 
                             
Total fixed rate secured debt
    1,181,247       1,156,777       5.23 %     5.2       39  
 
                                       
Variable Rate Debt
                                       
Mortgage notes payable
    158,075       114,181       2.88 %     5.1       11  
Tax-exempt secured note payable
    27,000       27,000       1.53 %     21.0       1  
Fannie Mae credit facilities
    350,922       164,513       2.32 %     7.7       20  
 
                             
Total variable rate secured debt
    535,997       305,694       2.44 %     7.6       32  
 
                             
Total secured debt
  $ 1,717,244     $ 1,462,471       4.36 %     5.9       71  
 
                             
UDR entered into secured revolving credit facilities with Fannie Mae with an aggregate commitment of $1.1 billion at March 31, 2009. The Fannie Mae credit facilities are for an initial term of 10 years, bear interest at floating and fixed rates, and certain variable rate facilities can be extended for an additional five years at our option. We have $666.0 million of the funded balance fixed at a weighted average interest rate of 5.5% and the remaining balance on these facilities is currently at a weighted average variable rate of 2.3%.
                 
    March 31, 2009     December 31, 2008  
 
               
Borrowings outstanding
  $ 1,016,916     $ 831,155  
Weighted average borrowings during the period ended
    892,888       702,620  
Maximum daily borrowings during the period ended
    1,016,916       831,370  
Weighted average interest rate during the period ended
    4.8 %     5.5 %
Weighted average interest rate at the end of the period
    4.4 %     5.0 %
The Company will from time to time acquire properties subject to fixed rate debt instruments. In those situations, management will record the secured debt at its estimated fair value and amortize any difference between the fair value and par to interest expense over the life of the underlying debt instrument. The unamortized fair market adjustment was an asset of $769,000 and $763,000 at March 31, 2009 and December 31, 2008, respectively.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Fixed Rate Debt
Mortgage notes payable. Fixed rate mortgage notes payable are generally due in monthly installments of principal and interest and mature at various dates from July 2009 through June 2016 and carry interest rates ranging from 2.50% to 8.18%. Mortgage notes payable includes debt associated with development activities.
Tax-exempt secured notes payable. Fixed rate mortgage notes payable that secure tax-exempt housing bond issues mature in March 2031 and carry an interest rate of 5.30%. Interest on these notes is payable in semi-annual installments.
Secured credit facilities. At March 31, 2009, UDR’s fixed rate secured credit facilities consisted of $666.0 million on a $1.1 billion aggregate commitment under four revolving secured credit facilities with Fannie Mae (the Company also owes $350.9 million under the variable rate component of this credit facility). The Fannie Mae credit facilities are for an initial term of 10 years, bear interest at floating and fixed rates, and certain variable rate facilities can be extended for an additional five years at our option. As of March 31, 2009, the fixed rate Fannie Mae credit facilities had a weighted average fixed rate of interest of 5.52%.
Variable Rate Debt
Mortgage notes payable. Variable rate mortgage notes payable are generally due in monthly installments of principal and interest and mature at various dates from October 2009 through April 2016. The mortgage notes payable is based on LIBOR plus some basis points, which translate into interest rates ranging from 1.13% to 4.13% at March 31, 2009. The Company has the ability under the debt instrument maturing in October 2009 to exercise contractually provided extensions (two one-year extensions) on the outstanding balance of $110.3 million.
Tax-exempt secured note payable. The variable rate mortgage note payable that secures tax-exempt housing bond issues matures in March 2030. Interest on this note is payable in monthly installments. The variable mortgage note has an interest rate of 1.53% as of March 31, 2009.
Secured credit facilities. The variable rate secured credit facilities consisted of $350.9 million outstanding on the Fannie Mae credit facilities. As of March 31, 2009, the variable rate Fannie Mae credit facilities had a weighted average floating rate of interest of 2.32%.
The aggregate maturities, including amortizing principal payments, of our secured debt due during each of the next five calendar years and thereafter are as follows (dollars in thousands):
                                                         
    Fixed     Variable  
    Mortgage     Tax-Exempt     Credit     Mortgage     Tax-Exempt     Credit        
    Notes     Notes     Facilities     Notes     Notes     Facilities     Total  
 
                                                       
2009
  $ 123,686     $     $ 1,859     $ 5,318     $     $     $ 130,863  
2010
    109,144             2,654       538                   112,336  
2011
    80,577             52,808       27,322             39,513       200,220  
2012
    56,791             177,944       8,552             60,000       303,287  
2013
    61,395             38,631       38,403                   138,429  
Thereafter
    70,335       13,325       392,098       77,942       27,000       251,409       832,109  
 
                                         
 
                                                       
 
  $ 501,928     $ 13,325     $ 665,994     $ 158,075     $ 27,000     $ 350,922     $ 1,717,244  
 
                                         

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
6. UNSECURED DEBT
A summary of unsecured debt as of March 31, 2009 and December 31, 2008 is as follows (dollars in thousands):
                 
    March 31,     December 31,  
    2009     2008  
 
               
Commercial Banks
               
Borrowings outstanding under an unsecured credit facility due July 2012 (a)
  $ 51,100     $  
Borrowings outstanding under an unsecured term loan due February 2010 (b)
    240,000       240,000  
Senior Unsecured Notes — Other
               
4.25% Medium-Term Notes due January 2009
          50,000  
6.50% Notes due June 2009
    91,899       200,000  
3.90% Medium-Term Notes due March 2010
    50,000       50,000  
3.625% Convertible Senior Notes due September 2011(c)
    127,356       164,255  
5.00% Medium-Term Notes due January 2012
    100,000       100,000  
6.05% Medium-Term Notes due June 2013
    122,500       125,000  
5.13% Medium-Term Notes due January 2014(d)
    184,000       184,000  
5.50% Medium-Term Notes due April 2014(d)
    128,500       128,500  
5.25% Medium-Term Notes due January 2015(d)
    175,175       175,175  
5.25% Medium-Term Notes due January 2016(d)
    83,260       83,260  
8.50% Debentures due September 2024
    54,118       54,118  
4.00% Convertible Senior Notes due December 2035(e)
    235,114       244,166  
Other
    147       149  
 
           
 
    1,643,169       1,798,623  
 
           
 
               
Unsecured Notes — Premiums & Discount
               
Premium on $50 million Medium-Term Notes due March 2010
    151       190  
Premium on $250 million Medium-Term Notes due January 2015(d)
    203       212  
Discount on $150 million Medium-Term Notes due April 2014(d)
    (346 )     (363 )
 
           
 
    8       39  
 
           
 
               
Total Unsecured Debt
  $ 1,643,177     $ 1,798,662  
 
           
     
(a)   Our unsecured credit facility provides us with an aggregate borrowing capacity of $600 million, which at our election we can increase to $750 million under certain circumstances. Our unsecured credit facility with a consortium of financial institutions carries an interest rate equal to LIBOR plus a spread of 47.5 basis points and matures on July 26, 2012. In addition, the unsecured credit facility contains a provision that allows us to bid up to 50% of the commitment and we can bid out the entire unsecured credit facility once per quarter so long as we maintain an investment grade rating.
 
(b)   During the year ended December 31, 2008, UDR borrowed $240 million in the form of a two-year unsecured term loan from a consortium of banks. UDR entered into one interest rate swap agreement associated with the borrowings under the term loan with an aggregate notional value of $200 million in which the Company pays a fixed rate of interest and receives a variable rate of interest on the notional amount. The interest rate swap effectively changes UDR’s interest rate exposure on $200 million of these borrowings from a variable rate to a weighted average fixed rate of approximately 3.61%. The remaining $40 million has a variable interest rate, which was 1.36% at March 31, 2009.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
(c)   At any time on or after July 15, 2011, prior to the close of business on the second business day prior to September 15, 2011, and also following the occurrence of certain events, the notes will be convertible at the option of the holder. Upon conversion of the notes, UDR will deliver cash and common stock, if any, based on a daily conversion value calculated on a proportionate basis for each trading day of the relevant 30 trading day observation period. The initial conversion rate for each $1,000 principal amount of notes is 26.6326 shares of our common stock, subject to adjustment under certain circumstances. The Company’s Special Dividend met the criteria to adjust the conversion rate and will result in an adjusted conversion rate of 29.0207 shares of our common stock for each $1,000 of principal. In connection with the issuance of the 3.625% convertible senior notes, UDR entered into a capped call transaction with respect to its common stock. The convertible note and capped call transaction, both of which expire September 2011, must be net share settled. The maximum number of shares to be issued under the convertible notes is 6.7 million shares, subject to certain adjustment provisions. The capped call transaction combines a purchased call option with a strike price of $37.548 with a written call option with a strike price of $43.806. These transactions have no effect on the terms of the 3.625% convertible senior notes by effectively increasing the initial conversion price to $43.806 per share, representing a 40% conversion premium. The net cost of $12.6 million of the capped call transaction was included in stockholders’ equity.
 
(d)   During the three months ended March 31, 2009, the Company repurchased several different traunches of its unsecured debt in open market purchases. As a result of these transactions, we retired debt with a notional value of $159.6 million for $150 million of cash. The gain of $7.1 million is presented as a separate component of interest expense on our Consolidated Statement of Operations. Consistent with our accounting policy, the Company expensed $737,000 of unamortized financing costs and $1.8 million unamortized premium on convertible debt as a result of these debt retirements.
 
(e)   The convertible notes are convertible at the option of the holder on January 15, 2011, December 15, 2015, December 15, 2020, December 15, 2025 and December 15, 2030 into cash, and in certain circumstances, shares of UDR’s common stock at an initial conversion price of approximately 35.2988 shares per $1,000 principal, subject to adjustment in certain circumstances. The Company’s Special Dividend met the criteria to adjust the conversion rate and the conversion rate was adjusted to 38.7123 shares of our common stock for each $1,000 of principal. The Company has at our discretion after providing adequate notification, the ability to redeem the instrument subsequent to January 15, 2011 for cash, and in certain instances shares of UDR’s common stock.
In May 2008, the Financial Accounting Standards Board (FASB) affirmed the consensus of FASB Staff Position APB 14-1 (FSP APB 14-1), “Accounting for Convertible Debt instruments That May Be Settled in Cash upon Conversion (Including Partial Cash Settlement),” which applies to all convertible debt instruments that have a “net settlement feature”, which means that such convertible debt instruments, by their terms, may be settled either wholly or partially in cash upon conversion. FSP APB 14-1 requires issuers of convertible debt instruments that may be settled wholly or partially in cash upon conversion to separately account for the liability and equity components in a manner reflective of the issuers’ nonconvertible debt borrowing rate. The Company adopted FSP APB 14-1 as of January 1, 2009, and the adoption impacted the historical accounting for the 3.625% convertible senior notes due September 2011 and the 4.00% convertible senior notes due December 2035, and resulted in increased interest expense of $3.0 million and $1.7 million for the three months ended March 31, 2009 and 2008, respectively.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
The following is a summary of short-term bank borrowings under UDR’s bank credit facility at March 31, 2009 and December 31, 2008 (dollars in thousands):
                 
    March 31,     December 31,  
    2009     2008  
 
               
Total revolving credit facility
  $ 600,000     $ 600,000  
Borrowings outstanding at end of period
    51,100        
Weighted average daily borrowings during the period ended
    161,597       84,566  
Maximum daily borrowings during the period ended
    279,400       587,400  
Weighted average interest rate during the period ended
    1.0 %     4.1 %
Weighted average interest rate at the end of the period
    0.9 %     N/A  
The convertible notes are convertible at the option of the holder, and as such are presented as if the holder will convert the debt instrument at the earliest available date. The aggregate maturities of unsecured debt for the five years subsequent to March 31, 2009 are as follows (dollars in thousands):
                         
    Credit     Unsecured        
    Facility     Debt     Total  
 
                       
2009
  $     $ 91,994     $ 91,994  
2010
          290,014       290,014  
2011
          362,447       362,447  
2012
    51,100       99,976       151,076  
2013
          122,476       122,476  
Thereafter
          625,170       625,170  
 
                 
 
                       
 
  $ 51,100     $ 1,592,077     $ 1,643,177  
 
                 
Our debt instruments contain covenants that we were in compliance with at March 31, 2009.
7. (LOSS)/EARNINGS PER SHARE
Basic earnings per common share is computed based upon the weighted average number of common shares outstanding during the period. Diluted earnings per common share is computed based upon common shares outstanding plus the effect of dilutive stock options and other potentially dilutive common stock equivalents such as the non-vested restricted stock awards.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
The following table sets forth the computation of basic and diluted earnings per share for the periods presented (dollars in thousands, except per share data):
                 
    Three months ended  
    March 31,  
    2009     2008  
 
               
Numerator for (loss)/earnings per share — basic and diluted:
               
Net (loss)/earnings available to common stockholders
  $ (15,429 )   $ 720,510  
 
           
 
               
Denominator for (loss)/earnings per share — basic and diluted:
               
Weighted average common shares outstanding
    149,076       143,631  
Non-vested restricted stock awards
    (1,462 )     (1,084 )
 
           
 
               
Denominator for basic and diluted (loss)/earnings per share
    147,614       142,547  
 
           
 
               
(Loss)/earnings per share — basic and diluted
  $ (0.10 )   $ 5.05  
 
           
The effect of the conversion of the operating partnership units, Out-Performance Partnership Shares, convertible preferred stock, and convertible debt, is not dilutive and is therefore not included in the above calculations as the Company reported a loss from continuing operations.
If the operating partnership units were converted to common stock, the additional weighted average common shares outstanding for the three months ended March 31, 2009 and 2008, would be 8,047,564 and 9,703,944, respectively.
At March 31, 2009 and 2008, if the measurement periods had ended on that date, no Series E Out-Performance Partnership Shares would have been issued had the Program terminated on that date. Accordingly, no additional operating partnership units would have been issued at that date (see note 10-Commitments and Contingencies, for a discussion of UDR’s Out-Performance Programs).
8. DERIVATIVES AND HEDGING ACTIVITY
Risk Management Objective of Using Derivatives
The Company is exposed to certain risk arising from both its business operations and economic conditions. The Company principally manages its exposures to a wide variety of business and operational risks through management of its core business activities. The Company manages economic risks, including interest rate, liquidity, and credit risk primarily by managing the amount, sources, and duration of its debt funding and the use of derivative financial instruments. Specifically, the Company enters into derivative financial instruments to manage exposures that arise from business activities that result in the receipt or payment of future known and uncertain cash amounts, the value of which are determined by interest rates. The Company’s derivative financial instruments are used to manage differences in the amount, timing, and duration of the Company’s known or expected cash receipts and its known or expected cash payments principally related to the Company’s investments and borrowings.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Cash Flow Hedges of Interest Rate Risk
The Company’s objectives in using interest rate derivatives are to add stability to interest expense and to manage its exposure to interest rate movements. To accomplish this objective, the Company primarily uses interest rate swaps and caps as part of its interest rate risk management strategy. Interest rate swaps designated as cash flow hedges involve the receipt of variable-rate amounts from a counterparty in exchange for the Company making fixed-rate payments over the life of the agreements without exchange of the underlying notional amount. Interest rate caps designated as cash flow hedges involve the receipt of variable-rate amounts from a counterparty if interest rates rise above the strike rate on the contract in exchange for an up front premium.
The effective portion of changes in the fair value of derivatives designated and that qualify as cash flow hedges is recorded in “Accumulated Other Comprehensive Income” and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings. During the quarter ended March 31, 2009, such derivatives were used to hedge the variable cash flows associated with existing variable-rate debt. The ineffective portion of the change in fair value of the derivatives is recognized directly in earnings. During the three months ended March 31, 2009, the Company recorded $0 of hedge ineffectiveness in earnings attributable to reset date and index mismatches between the derivative and the hedged item.
Amounts reported in Accumulated Other Comprehensive Income related to derivatives will be reclassified to interest expense as interest payments are made on the Company’s variable-rate debt. During the next twelve months, the Company estimates that an additional $8.7 million will be reclassified as an increase to interest expense.
As of March 31, 2009, the Company had the following outstanding interest rate derivatives that were designated as cash flow hedges of interest rate risk:
                 
Interest Rate   Number of        
Derivative   Instruments     Notional  
Interest rate swaps
    11     $ 590,453,208  
Interest rate caps
    2     $ 113,909,000  
Derivatives not designated as hedges are not speculative and are used to manage the Company’s exposure to interest rate movements and other identified risks but do not meet the strict hedge accounting requirements of SFAS 133. Changes in the fair value of derivatives not designated in hedging relationships are recorded directly in earnings and were equal to a loss of $55,000 for the quarter ended March 31, 2009. As of March 31, 2009, the Company had the following outstanding derivatives that were not designated as hedges in qualifying hedging relationships:
                 
    Number of        
Product   Instruments     Notional  
Interest rate caps
    5     $ 270,165,517  

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
Tabular Disclosure of Fair Values of Derivative Instruments on the Balance Sheet
The table below presents the fair value of the Company’s derivative financial instruments as well as their classification on the Balance Sheet as of March 31, 2009.
Tabular Disclosure of Fair Values of Derivative Instruments (amounts in thousands)
                         
    Asset Derivatives     Liability Derivatives  
    Balance Sheet           Balance Sheet      
    Location   Fair Value     Location   Fair Value  
Derivatives designated as hedging instruments under SFAS 133
                       
Interest Rate Products
  Other Assets   $ 326     Other Liabilities   $ 10,844  
 
                   
 
                       
Total derivatives designated as hedging instruments under SFAS 133
      $ 326         $ 10,844  
 
                   
 
                       
Derivatives not designated as hedging instruments under SFAS 133
                       
Interest Rate Products
  Other Assets   $ 297     Other Liabilities   $ 0  
 
                   
 
                       
Total derivatives not designated as hedging instruments under SFAS 133
      $ 0         $ 0  
 
                   
Tabular Disclosure of the Effect of Derivative Instruments on the Income Statement
The tables below present the effect of the Company’s derivative financial instruments on the Income Statement for the quarter ended March 31, 2009 (amounts in thousands).
                                 
                            Amount of Gain or  
                            (Loss) Recognized in  
                        Location of Gain or   Income on Derivative  
    Amount of Gain or     Location of Gain or   Amount of Gain or (Loss)     (Loss) Recognized in   (Ineffective Portion  
    (Loss) Recognized in     (Loss) Reclassified   Reclassified from     Income on Derivative   and Amount Excluded  
Derivatives in SFAS 133   OCI on Derivative     from Accumulated   Accumulated OCI into     (Ineffective Portion and   from Effectiveness  
Cash Flow Hedging   (Effective Portion)     OCI into Income   Income (Effective Portion)     Amount Excluded from   Testing)  
Relationships   3/31/2009     (Effective Portion)   3/31/2009     Effectiveness Testing)   3/31/2009  
Interest Rate Products
  $ (2,493 )   Interest income / (expense)   $ (2,646 )   Other income / (expense)   $ 0  
 
                         
 
                               
Total
  $ (2,493 )       $ (2,646 )       $ 0  
 
                         

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
             
        Amount of Gain or  
        (Loss) Recognized  
Derivatives Not Designated   Location of Gain or   in Income on  
as Hedging Instruments   (Loss) Recognized in   Derivative  
Under SFAS 133   Income on Derivative   3/31/2009  
Interest Rate Products
  Other income / (expense)   $ (55 )
 
         
 
           
Total
      $ (55 )
 
         
Credit-risk-related Contingent Features
The Company has agreements with some of its derivative counterparties that contain a provision where (1) if the Company defaults on any of its indebtedness, including default where repayment of the indebtedness has not been accelerated by the lender, then the company could also be declared in default on its derivative obligations; or (2) the company has agreements with some of its derivative counterparties that contain a provision where the Company could be declared in default on its derivative obligations if repayment of the underlying indebtedness is accelerated by the lender due to the Company’s default on the indebtedness.
The Company also has an agreement with a derivative counterparty that incorporates the loan and financial covenant provisions of the Company’s indebtedness with a lender affiliate of the derivative counterparty. Failure to comply with these covenant provisions would result in the Company being in default on any derivative instrument obligations covered by the agreement.
As of March 31, 2009, the fair value of derivatives in a net liability position, which includes accrued interest but excludes any adjustment for nonperformance risk, related to these agreements was $12.4 million. As of March 31, 2009, the Company has not posted any collateral related to these agreements. If the Company had breached any of these provisions at March 31, 2009, it would have been required to settle its obligations under the agreements at their termination value of $12.4 million.
9. ACCUMULATED OTHER COMPREHENSIVE INCOME
Accumulated other comprehensive loss was $11.1 million and $11.9 million at March 31, 2009 and December 31, 2008, respectively. It consists of accumulated unrealized gains from the mark-to-market of marketable securities classified as available-for-sale and unrealized gains or losses from derivative financial instruments. The Company allocates a pro-rata share of gains or losses to non-controlling interests.
10. STOCK BASED COMPENSATION
UDR accounts for stock based compensation in accordance with SFAS 123R, “Share Based Payment”, which the Company adopted on January 1, 2006, utilizing the modified prospective method. During the three months ended March 31, 2009 and 2008, we recognized $2.3 million and $1.8 million, respectively as stock based compensation expense, which is inclusive of awards granted to our outside directors.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
11. COMMITMENTS AND CONTINGENCIES
Commitments
Real Estate Under Development
The following summarizes the Company’s real estate commitments at March 31, 2009 (dollars in thousands):
                                 
    Number of     Costs Incurred     Expected Costs     Ownership  
    Properties     to Date     to Complete     Stake  
 
Wholly owned — under development
    6     $ 209,584     $ 148,416       100 %
Unconsolidated joint venture (a)
    1       47,721       1,279       49 %
 
                           
 
          $ 257,305     $ 149,695          
 
                           
     
(a)   Costs incurred to date and expected costs to complete are based on UDR’s ownership percentage of the joint venture.
UDR has entered into a contract with a third party to purchase an apartment community of 289 homes in Dallas, Texas for approximately $29.0 million upon completion of its development, which will be recorded at that time. The apartment community is expected to be completed in the third quarter of 2009.
The Company may be required to make additional capital contributions to certain of our joint ventures should additional capital contributions be necessary to fund development costs or operating shortfalls.
Contingencies
Series E Out-Performance Program
In February 2007, the board of directors of UDR approved the Series E Out-Performance Program (the “Series E Program”) pursuant to which certain executive officers of UDR (the “Series E Participants”) were given the opportunity to invest indirectly in UDR by purchasing interests in UDR Out-Performance V, LLC, a Delaware limited liability company (the “Series E LLC”), the only asset of which is a special class of partnership units of the Operating Partnership (“Series E Out-Performance Partnership Shares” or “Series E OPPSs”). The Series E Program is part of the New Out-Performance Program approved by UDR’s stockholders in May 2005. The Series E LLC has agreed to sell 805,000 membership units to certain members of UDR’s senior management at a price of $1.00 per unit. The aggregate purchase price of $805,000 for the Series E OPPSs, assuming 100% participation, is based upon the advice of an independent valuation expert. The Series E Program will measure the cumulative total return on our common stock over the 36-month period beginning January 1, 2007 and ending December 31, 2009.
The Series E Program is designed to provide participants with the possibility of substantial returns on their investment if the cumulative total return on UDR’s common stock, as measured by the cumulative amount of dividends paid plus share price appreciation during the measurement period is at least the equivalent of a 36% total return, or 12% annualized (“Minimum Return”).

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
At the conclusion of the measurement period, if UDR’s cumulative total return satisfies these criteria, the Series E LLC as holder of the Series E OPPSs will receive (for the indirect benefit of the Series E Participants as holders of interests in the Series E LLC) distributions and allocations of income and loss from the Operating Partnership equal to the distributions and allocations that would be received on the number of OP Units obtained by:
  i.   determining the amount by which the cumulative total return of UDR’s common stock over the measurement period exceeds the Minimum Return (such excess being the “Excess Return”);
 
  ii.   multiplying 2% of the Excess Return by UDR’s market capitalization (defined as the average number of shares outstanding over the 36-month period, including common stock, OP Units, common stock equivalents and OP Units); and
 
  iii.   dividing the number obtained in (ii) by the market value of one share of UDR’s common stock on the valuation date, computed as the volume-weighted average price per day of the common stock for the 20 trading days immediately preceding the valuation date.
For the Series E OPPSs, the number determined pursuant to clause (ii) above is capped at 0.5% of market capitalization.
If, on the valuation date, the cumulative total return of UDR’s common stock does not meet the Minimum Return, then the Series E Participants will forfeit their entire initial investment.
Based on the results through March 31, 2009, no Series E OPPSs would have been issued had the Program terminated on that date. However, since the ultimate determination of Series E OPPSs to be issued will not occur until December 31, 2009, and the number of Series E OPPSs is determinable only upon future events, the financial statements do not reflect any impact for these events. Accordingly, the contingently issuable Series E OPPSs will only be included in basic earnings per share after the measurement period has ended and the applicable hurdle has been met. Furthermore, the Series E OPPSs will only be included in common stock and common stock equivalents in the calculation of diluted earnings per share after the hurdle has been met at the end of the reporting period (if any), assuming the measurement period ended at the end of the reporting period.
Litigation and Legal Matters
UDR is subject to various legal proceedings and claims arising in the ordinary course of business. UDR cannot determine the ultimate liability with respect to such legal proceedings and claims at this time. UDR believes that such liability, to the extent not provided for through insurance or otherwise, will not have a material adverse effect on our financial condition, results of operations or cash flow.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED)
12. REPORTABLE SEGMENTS
SFAS No. 131, “Disclosures about Segments of an Enterprise and Related Information,” (“SFAS 131”), requires that segment disclosures present the measure(s) used by the chief operating decision maker to decide how to allocate resources and for purposes of assessing such segments’ performance. UDR’s chief operating decision maker is comprised of several members of its executive management team who use several generally accepted industry financial measures to assess the performance of the business for our reportable operating segments.
UDR owns and operates multifamily apartment communities throughout the United States that generate rental and other property related income through the leasing of apartment homes to a diverse base of tenants. The primary financial measures for UDR’s apartment communities are rental income and net operating income (“NOI”). Rental income represents gross market rent less adjustments for concessions, vacancy loss and bad debt. NOI is defined as total revenues less direct property operating expenses. UDR’s chief operating decision maker utilizes NOI as the key measure of segment profit or loss.
UDR’s two reportable segments are same communities and non-mature/other communities:
    Same communities represent those communities acquired, developed, and stabilized prior to January 1, 2008, and held as of March 31, 2009. A comparison of operating results from the prior year is meaningful as these communities were owned and had stabilized occupancy and operating expenses as of the beginning of the prior year, there is no plan to conduct substantial redevelopment activities, and the community is not held for disposition within the current year. A community is considered to have stabilized occupancy once it achieves 90% occupancy for at least three consecutive months.
 
    Non-mature/other communities represent those communities that were acquired or developed in 2006, 2007 and 2008, sold properties, redevelopment properties, properties classified as real estate held for disposition, condominium conversion properties, joint venture properties, properties managed by third parties and the non-apartment components of mixed use properties.
Executive management evaluates the performance of each of our apartment communities on a same community and non-mature/other basis, as well as individually and geographically. This is consistent with the aggregation criteria of SFAS 131 as each of our apartment communities generally have similar economic characteristics, facilities, services, and tenants. Therefore, UDR’s reportable segments have been aggregated by geography in a manner identical to that which is provided to the chief operating decision maker.
All revenues are from external customers and no single tenant or related group of tenants contributed 10% or more of UDR’s total revenues during the three months ended March 31, 2009 and 2008.

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED
Certain reclassifications have been made to prior year amounts to conform to current year presentation. These reclassifications primarily represent presentation changes related to discontinued operations as described in Note 3, “Income from Discontinued Operations.” The accounting policies applicable to the operating segments described above are the same as those described in Note 1, “Summary of Significant Accounting Policies,” in UDR’s Annual Report on Form 10-K for the year ended December 31, 2008. The following table details rental income and NOI for UDR’s reportable segments for the three months ended March 31, 2009 and 2008, and reconciles NOI to net income per the Consolidated Statement of Operations (dollars in thousands):
                 
    Three Months Ended  
    March 31,  
    2009     2008  
 
Reportable apartment home segment rental income
               
Same Communities
               
Western Region
  $ 53,779     $ 53,085  
Mid-Atlantic Region
    26,701       26,332  
Southeastern Region
    27,424       27,976  
Southwestern Region
    4,492       4,532  
Non-Mature communities/Other
    38,219       53,646  
 
           
 
               
Total segment and consolidated rental income
  $ 150,615     $ 165,571  
 
           
 
               
Reportable apartment home segment NOI
               
Same Communities
               
Western Region
  $ 38,494     $ 37,078  
Mid-Atlantic Region
    18,254       17,902  
Southeastern Region
    17,159       17,540  
Southwestern Region
    2,964       2,905  
Non-Mature communities/Other
    22,182       32,889  
 
           
 
               
Total segment and consolidated NOI
    99,053       108,314  
 
           
 
               
Reconciling items:
               
Non-property income
    5,024       4,627  
Property management
    (4,142 )     (4,553 )
Other operating expenses
    (1,496 )     (1,004 )
Depreciation and amortization
    (68,985 )     (52,435 )
Interest
    (30,692 )     (40,016 )
General and administrative
    (9,855 )     (9,769 )
Other depreciation and amortization
    (1,394 )     (929 )
Loss from unconsolidated entities
    (717 )     (374 )
Tax (expense)/benefit for the TRS
    (51 )     1,265  
Non-controlling interests
    794       (48,736 )
Net (loss)/gain on the sale of land and depreciable property
    (168 )     767,329  
 
           
 
               
Net (loss)/income attributable to UDR, Inc.
  $ (12,629 )   $ 723,719  
 
           

 

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UDR, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2009
(UNAUDITED
The following table details the assets of UDR’s reportable segments as of March 31, 2009 and December 31, 2008 (dollars in thousands):
                 
    March 31,     December 31,  
    2009     2008  
Reportable apartment home segment assets:
               
Same communities:
               
Western Region
  $ 1,959,418     $ 1,953,072  
Mid-Atlantic Region
    721,377       718,124  
Southeastern Region
    817,283       814,204  
Southwestern Region
    152,102       151,529  
Non-mature communities/Other
    2,253,193       2,194,824  
 
           
Total segment assets
    5,903,373       5,831,753  
Accumulated depreciation
    (1,147,031 )     (1,078,689 )
 
           
Total segment assets — net book value
    4,756,342       4,753,064  
 
           
 
               
Reconciling items:
               
Cash and cash equivalents
    37,132       12,740  
Marketable securities
    32,133        
Restricted cash
    8,617       7,726  
Deferred financing costs, net
    29,262       29,168  
Notes receivable
    207,300       207,450  
Investment in unconsolidated joint ventures
    47,415       47,048  
Other assets
    66,562       85,842  
Other assets — real estate held for disposition
    767       767  
 
           
Total consolidated assets
  $ 5,185,530     $ 5,143,805  
 
           
Capital expenditures excluding redevelopment for the three months ended March 31, 2009 and 2008 related to our same communities totaled $11.5 million and $13.7 million, respectively. Capital expenditures related to our non-mature/other communities for the three months ended March 31, 2009 and 2008 totaled $3.8 million and $6.6 million, respectively.
Markets included in the above geographic segments are as follows:
  i.   Western — Orange County, San Francisco, Monterey Peninsula, Los Angeles, San Diego, Seattle, Inland Empire, Sacramento and Portland.
 
  ii.   Mid-Atlantic — Metropolitan DC, Richmond, Baltimore, Norfolk, and Other Mid-Atlantic.
 
  iii.   Southeastern — Tampa, Orlando, Nashville, Jacksonville, and Other Florida.
 
  iv.   Southwestern — Phoenix, Austin, Dallas, and Other Texas.
13. SUBSEQUENT EVENT
As previously reported, in 2008 the Company sold a portfolio of properties consisting of 86 communities for total consideration of $1.7 billion, including a note receivable in the amount of $200 million, bearing interest at the rate of 7.5% per annum. On May 4, 2009, the Company received from the buyer payment in full of the $200 million note, plus accrued and unpaid interest thereon in the amount of $123,287. The Company intends to use proceeds from the note receivable to fund general corporate obligations.

 

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Item 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking Statements
This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Such forward-looking statements include, without limitation, statements concerning property acquisitions and dispositions, development activity and capital expenditures, capital raising activities, rent growth, occupancy, and rental expense growth. Words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” and variations of such words and similar expressions are intended to identify such forward-looking statements. Such statements involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements to be materially different from the results of operations or plans expressed or implied by such forward-looking statements. Such factors include, among other things, unanticipated adverse business developments affecting us, or our properties, adverse changes in the real estate markets and general and local economies and business conditions. Although we believe that the assumptions underlying the forward-looking statements contained herein are reasonable, any of the assumptions could be inaccurate, and therefore such statements included in this report may not prove to be accurate. In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of such information should not be regarded as a representation by us or any other person that the results or conditions described in such statements or our objectives and plans will be achieved.
The following factors, among others, could cause our future results to differ materially from those expressed in the forward-looking statements:
    general economic factors;
 
    unfavorable changes in apartment market and economic conditions that could adversely affect occupancy levels and rental rates;
 
    the failure of acquisitions to achieve anticipated results;
 
    possible difficulty in selling apartment communities;
 
    the timing and closing of planned dispositions under agreement;
 
    competitive factors that may limit our ability to lease apartment homes or increase or maintain rents;
 
    insufficient cash flow that could affect our debt financing and create refinancing risk;
 
    failure to generate sufficient revenue, which could impair our debt service payments and distributions to stockholders;
 
    development and construction risks that may impact our profitability;
 
    potential damage from natural disasters, including hurricanes and other weather-related events, which could result in substantial costs to us;
 
    risks from extraordinary losses for which we may not have insurance or adequate reserves;
 
    uninsured losses due to insurance deductibles, self-insurance retention, uninsured claims or casualties, or losses in excess of applicable coverage;
 
    delays in completing developments and lease-ups on schedule;
 
    our failure to succeed in new markets;

 

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    changing interest rates, which could increase interest costs and affect the market price of our securities;
 
    potential liability for environmental contamination, which could result in substantial costs to us;
 
    the imposition of federal taxes if we fail to qualify as a REIT under the Internal Revenue Code in any taxable year;
 
    our internal control over financial reporting may not be considered effective which could result in a loss of investor confidence in our financial reports, and in turn have an adverse effect on our stock price; and
 
    changes in real estate laws, tax laws and other laws affecting our business.
A discussion of these and other factors affecting our business and prospects is set forth below in Part II, Item 1A. Risk Factors. We encourage investors to review these risks factors.
Business Overview
We are a real estate investment trust, or REIT, that owns, acquires, renovates, develops, and manages apartment communities nationwide. We were formed in 1972 as a Virginia corporation. In June 2003, we changed our state of incorporation from Virginia to Maryland. Our subsidiaries include two operating partnerships, Heritage Communities L.P., a Delaware limited partnership, and United Dominion Realty, L.P., a Delaware limited partnership. Unless the context otherwise requires, all references in this report to “we,” “us,” “our,” “the company,” or “UDR” refer collectively to UDR, Inc. and its subsidiaries.

 

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At March 31, 2009, our portfolio included 161 communities with 44,571 apartment homes nationwide. The following table summarizes our market information by major geographic markets:
                                                 
          Three Months Ended  
    As of March 31, 2009     March 31, 2009  
                    Percentage     Total        
    Number of     Number of     of Total     Carrying     Average     Total Income  
    Apartment     Apartment     Carrying     Value     Physical     per Occupied  
Same Communities   Communities     Homes     Value     (In thousands)     Occupancy     Home (a)  
Western Region
                                               
Orange Co, CA
    13       4,067       12.0 %   $ 708,392       94.4 %   $ 1,565  
San Francisco, CA
    8       1,768       5.3 %     311,472       95.1 %     1,874  
Monterey Peninsula, CA
    7       1,565       2.5 %     149,557       93.0 %     1,082  
Los Angeles, CA
    5       1,052       3.1 %     185,339       94.1 %     1,522  
San Diego, CA
    5       1,123       2.9 %     171,863       94.5 %     1,408  
Seattle, WA
    7       1,270       2.5 %     149,928       95.7 %     1,195  
Inland Empire, CA
    3       1,074       2.5 %     149,201       93.4 %     1,282  
Sacramento, CA
    2       914       1.1 %     66,922       91.9 %     919  
Portland, OR
    3       716       1.1 %     66,744       95.8 %     995  
 
                                               
Mid-Atlantic Region
                                               
Metropolitan DC
    7       2,050       4.4 %     256,839       96.3 %     1,427  
Richmond, VA
    6       1,958       2.6 %     154,409       95.7 %     1,007  
Baltimore, MD
    8       1,556       2.6 %     152,709       96.9 %     1,175  
Norfolk, VA
    6       1,438       1.4 %     81,898       95.4 %     959  
Other Mid-Atlantic
    5       1,132       1.3 %     75,522       95.9 %     1,021  
 
                                               
Southeastern Region
                                               
Tampa, FL
    9       3,069       3.9 %     227,684       94.4 %     939  
Orlando, FL
    9       2,500       3.1 %     185,803       94.2 %     941  
Nashville, TN
    7       1,874       2.4 %     140,338       95.7 %     881  
Jacksonville, FL
    5       1,857       2.6 %     153,140       93.5 %     852  
Other Florida
    4       1,184       1.9 %     110,318       94.0 %     1,029  
 
                                               
Southwestern Region
                                               
Phoenix, AZ
    3       914       1.2 %     70,055       93.9 %     924  
Austin, TX
    1       250       0.3 %     20,471       95.6 %     947  
Dallas, TX
    1       305       1.0 %     61,576       96.5 %     1,625  
 
                                               
 
                                   
Total/Average Same Communities
    124       33,636       61.7 %     3,650,180       94.7 %   $ 1,176  
 
                                   
 
                                               
Non-Matures, Commercial Properties and Other
    36       10,774       34.7 %     2,043,609                  
 
                                               
 
                                       
Total Real Estate Held for Investment
    160       44,410       96.4 %     5,693,789                  
 
                                       
 
                                               
Real Estate Under Development (b)
    1       161       3.6 %     209,584                  
 
                                               
 
                                       
Total
    161       44,571       100.0 %   $ 5,903,373                  
 
                                       
     
(a)   Total Income per Occupied Home represents total revenues per weighted average number of apartment homes occupied.
 
(b)   The Company is currently developing six wholly-owned communities with a total of 2,207 apartment homes of which 2,046 have not yet been completed.

 

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Liquidity and Capital Resources
Liquidity is the ability to meet present and future financial obligations either through operating cash flows, the sale or maturity of existing assets, or by the acquisition of additional funds through capital management. Both the coordination of asset and liability maturities and effective capital management are important to the maintenance of liquidity. Our primary source of liquidity is our cash flow from operations as determined by rental rates, occupancy levels, and operating expenses related to our portfolio of apartment homes and borrowings under credit arrangements. We routinely use our unsecured bank credit facility to temporarily fund certain investing and financing activities prior to arranging for longer-term financing or the issuance of equity securities. During the past several years, proceeds from the sale of real estate have been used for both investing and financing activities as we reposition our portfolio.
We expect to meet our short-term liquidity requirements generally through net cash provided by operations and borrowings under credit arrangements. We expect to meet certain long-term liquidity requirements such as scheduled debt maturities, the repayment of financing on development activities, and potential property acquisitions, through long-term secured and unsecured borrowings, the disposition of properties, and the issuance of additional debt or equity securities. We believe that our net cash provided by operations and borrowings under credit arrangements will continue to be adequate to meet both operating requirements and the payment of dividends by the Company in accordance with REIT requirements. Likewise, the budgeted expenditures for improvements and renovations of certain properties are expected to be funded from property operations and borrowings under credit arrangements.
We have a shelf registration statement filed with the Securities and Exchange Commission which provides for the issuance of an indeterminate amount of common stock, preferred stock, debt securities, guarantees of debt securities, warrants, subscription rights, purchase contracts and units to facilitate future financing activities in the public capital markets. Access to capital markets is dependent on market conditions at the time of issuance.
Future Capital Needs
Future development expenditures are expected to be funded with proceeds from construction loans, through joint ventures, the use of our unsecured revolving credit facility, the use of proceeds from the issuance of unsecured borrowings, the sale of properties and to a lesser extent, with cash flows provided by operating activities. Acquisition activity in strategic markets is expected to be largely financed by the reinvestment of proceeds from the sale of properties and through the issuance of equity and debt securities, the issuance of operating partnership units, and the assumption or placement of secured and/or unsecured debt.
During the remainder of 2009, we have approximately $130.9 million of secured debt and $92.0 million of unsecured debt maturing and we anticipate repaying that debt with cash on hand or borrowings under our secured or unsecured credit facilities and by exercising extension rights, as applicable, with respect to such debt.
Critical Accounting Policies and Estimates
Our critical accounting policies are those having the most impact on the reporting of our financial condition and results and those requiring significant judgments and estimates. These policies include those related to (1) capital expenditures, (2) impairment of long-lived assets, and (3) real estate investment properties. Based on the Company’s repositioning initiative, management deemed our policy surrounding real estate sales to be a critical accounting policy.

 

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Real Estate Sales
The Company accounts for sales of real estate in accordance with SFAS 66. For sale transactions meeting the requirements for full accrual profit recognition, such as the Company no longer having continuing involvement in the property we remove the related assets and liabilities from our consolidated balance sheet and record the gain or loss in the period the transaction closes. For sales transactions that do not meet the full accrual sale criteria due to our continuing involvement, we evaluate the nature of the continuing involvement and account for the transaction under an alternate method of accounting.
Sales to entities in which we retain or otherwise own an interest are accounted for as partial sales. If all other requirements for recognizing profit under the full accrual method have been satisfied and no other forms of continuing involvement are present, we recognize profit proportionate to the outside interest in the buyer and will defer the gain on the interest we retain. The Company will recognize any deferred gain when the property is then sold to a third party. In transactions accounted by us as partial sales, we determine if the buyer of the majority equity interest in the venture was provided a preference as to cash flows in either an operating or a capital waterfall. If a cash flow preference has been provided, we recognize profit only to the extent that proceeds from the sale of the majority equity interest exceed costs related to the entire property.
Our other critical accounting policies are described in more detail in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the year ended December 31, 2008. There have been no significant changes in our critical accounting policies from those reported in our 2008 Annual Report on Form 10-K. With respect to these critical accounting policies, we believe that the application of judgments and assessments is consistently applied and produces financial information that fairly depicts the results of operations for all periods presented.
Statements of Cash Flows
The following discussion explains the changes in net cash provided by operating activities and net cash used in investing and financing activities that are presented in our Consolidated Statements of Cash Flows.
Operating Activities
For the three months ended March 31, 2009, our cash flow provided by operating activities was $71.6 million compared to $22.4 million for the comparable period in 2008. The increase in cash flow from operating activities resulted primarily due to the changes from operating assets and liabilities during the three months ended March 31, 2009 as compared to the same period in 2008, and is partially offset by a reduction in property operating income (see discussion under "Apartment Community Operations”).
Investing Activities
For the three months ended March 31, 2009, net cash (used in)/provided by investing activities was ($99.2) million as compared to $577.1 million for the comparable period in 2008. Changes in the level of investing activities from period to period reflects our strategy as it relates to our disposition, acquisition, capital expenditure, and development programs, as well as the impact of the capital markets environment on these activities, all of which are discussed in further detail below.

 

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Acquisitions
During the three months ended March 31, 2009, we did not acquire any real estate. Our long-term strategic plan is to achieve greater operating efficiencies by investing in fewer, more concentrated markets. As a result, we have been expanding our interests in the Southern California, Northern California, Florida, Metropolitan Washington DC and the Washington State markets over the past several years. Prospectively, any additional acquisitions will be channeled into those markets that we believe will provide the best investment returns. Markets will be targeted based upon defined criteria including high barriers to entry, favorable job formation and low single-family home affordability.
Capital Expenditures
In conformity with accounting principles generally accepted in the United States, we capitalize those expenditures related to acquiring new assets, materially enhancing the value of an existing asset, or substantially extending the useful life of an existing asset. Expenditures necessary to maintain an existing property in ordinary operating condition are expensed as incurred.
During the three months ended March 31, 2009, $18.2 million or approximately $419 per home was spent on capital expenditures for all of our communities, excluding development, condominium conversions and commercial properties. These capital improvements included turnover related expenditures for floor coverings and appliances, other recurring capital expenditures such as roofs, siding, parking lots, and asset preservation capital expenditures, which aggregated $5.7 million or $131 per home. In addition, revenue enhancing capital expenditures, kitchen and bath upgrades, upgrades to HVAC equipment, and other extensive exterior/interior upgrades totaled $8.0 million or $184 per home, and major renovations totaled $4.5 million or $104 per home for the three months ended March 31, 2009.
The following table outlines capital expenditures and repair and maintenance costs for all of our communities, excluding real estate under development, condominium conversions and commercial properties, for the periods presented:
                                                 
    Three months ended March 31,     Three months ended March 31,  
    (dollars in thousands)     (per home)  
    2009     2008     % Change     2009     2008     % Change  
Turnover capital expenditures
  $ 2,111     $ 2,702       -21.9 %   $ 49     $ 48       2.1 %
Asset preservation expenditures
    3,570       3,108       14.9 %     82       55       49.1 %
 
                                   
Total recurring capital expenditures
    5,681       5,810       -2.2 %     131       103       27.2 %
 
                                               
Revenue enhancing improvements
    7,989       11,664       -31.5 %     184       205       -10.2 %
Major renovations
    4,529       14,385       -68.5 %     104       253       -58.9 %
 
                                   
Total capital expenditures
  $ 18,199     $ 31,859       -42.9 %   $ 419     $ 561       -25.2 %
 
                                   
 
                                               
Repair and maintenance expense
  $ 7,018     $ 9,314       -24.7 %   $ 161     $ 164       -1.8 %
 
                                   
 
                                               
Average stabilized home count
    43,456       56,853                                  
Total capital expenditures for our communities decreased $13.7 million for the three months ended March 31, 2009, compared to the comparable period in 2008. This decrease was primarily attributable to the Company’s ongoing repositioning of our real estate portfolio evidenced by our disposition of 84 communities during the three months ended March 31, 2008. Recurring capital expenditures during 2009 are currently expected to be approximately $675 per home.
Development
At March 31, 2009, our development pipeline for wholly-owned communities totaled 2,207 homes with a budget of $358.0 million in which we have a carrying value of $209.6 million. We expect to have the first of these communities complete development during the second quarter of 2009. In addition, we own several parcels of land held for future development with a gross book value of $160.7 million in which the Company is seeking entitlements and preparing for development, although we do not anticipate development to commence during 2009.

 

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For the three months ended March 31, 2009, we invested approximately $53.6 million in development projects, an increase of $29.6 million from our 2008 level of $24.0 million. We funded these costs with $20.4 million in draws on our construction facilities. At March 31, 2009, the Company has drawn $184.7 million and has $134.3 million of remaining capacity on our construction facilities. As a result of our investment in developments, we completed development on one wholly-owned community with 200 apartment homes at a total cost of $15.8 million.
Unconsolidated Development Joint Ventures
UDR is a partner in a joint venture which will develop 274 apartment homes in the central business district of Bellevue, Washington. Construction began in the fourth quarter of 2006 and is scheduled for completion in the third quarter of 2009. At closing, we owned 49% of the project. Our investment at March 31, 2009 and December 31, 2008 was $10.5 million and $9.9 million, respectively.
The Company is a partner in a joint venture to develop a site in Bellevue, Washington. At closing, we owned 49% of the joint venture which the Company had intended to develop a 430 home high rise apartment building with ground floor retail. Our initial investment was $5.7 million. Our investment at March 31, 2009 and December 31, 2008 was $10.4 million and $10.2 million, respectively. The joint venture has no current plans to continue with the development.
Disposition of Investments
During the three months ended March 31, 2009 UDR did not dispose of any communities. We plan to continue to pursue our strategy of exiting markets where long-term growth prospects are limited and redeploying capital into markets we believe will provide the best investment returns.
Financing Activities
Net cash provided by/(used in) financing activities during the three months ended March 31, 2009, was $52.1 million as compared to ($542.6) million for the comparable period in 2008.
The following is a summary of our significant financing activities for the three months ended March 31, 2009:
    Repaid $15.2 million of secured debt and $209.6 million of unsecured debt (represents the notional amount of debt repaid and excludes the gain on extinguishment). The $209.6 million of unsecured debt includes $50 million for maturing medium-term notes and $159.6 million for the repurchase of unsecured debt.
 
    Repurchased unsecured debt with a notional amount of $159.6 million for $150.0 million resulting in a gain on extinguishment of $7.1 million, net of deferred finance charges. The unsecured debt repurchased by the Company matured in 2009, 2011, 2013 and 2035. As a result of these repurchases, the gain is represented as a reduction to interest expense on the Consolidated Statement of Operations.
 
    During the three months ended March 31, 2009, we repurchased 100,000 shares of UDR common stock at an average price per share of $7.98 under our share repurchase programs.
 
    Borrowed an additional $270.0 million of secured debt, which consisted of $186.4 million on our Fannie Mae credit facility, $63.2 million additional secured variable rate debt and $20.4 million additional construction loans.

 

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Credit Facilities
As of March 31, 2009, we have secured revolving credit facilities with Fannie Mae with an aggregate commitment of $1.1 billion with $1.0 billion outstanding. The Fannie Mae credit facilities are for an initial term of 10 years, bear interest at floating and fixed rates, and certain variable rate facilities can be extended for an additional five years at our option. We have $666.0 million of the funded balance fixed at a weighted average interest rate of 5.5% and the remaining balance on these facilities is currently at a weighted average variable rate of 2.3%.
We have a $600 million unsecured revolving credit facility that matures on July 26, 2012. Under certain circumstances, we may increase the $600 million credit facility to $750 million. Based on our current credit rating, the $600 million credit facility carries an interest rate equal to LIBOR plus a spread of 47.5 basis points. Under a competitive bid feature and for so long as we maintain an Investment Grade Rating, we have the right under the $600 million credit facility to bid out 50% of the commitment amount and we can bid out 100% of the commitment amount once per quarter. As of March 31, 2009, we had $51.1 million of borrowings outstanding under the credit facility leaving $548.9 million of unused capacity.
The Fannie Mae credit facility and the bank revolving credit facility are subject to customary financial covenants and limitations.
Derivative Instruments
As part of UDR’s overall interest rate risk management strategy, we use derivatives as a means to fix the interest rates of variable rate debt obligations or to hedge anticipated financing transactions. UDR’s derivative transactions used for interest rate risk management includes interest rate swaps with indexes that relate to the pricing of specific financial instrument of UDR. We believe that we have appropriately controlled our interest rate risk through the use of derivative instruments so that there will not be any material unintended effect on consolidated earnings. Derivative contracts did not have a material impact on the results of operations during the three months ended March 31, 2009 (see Note 8 — Derivatives and Hedging Activities).
Funds from Operations
Funds from operations, or FFO, is defined as net income (computed in accordance with generally accepted accounting principles), excluding gains (or losses) from sales of depreciable property, plus real estate depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. We compute FFO for all periods presented in accordance with the recommendations set forth by the National Association of Real Estate Investment Trust’s (“NAREIT”) April 1, 2002 White Paper. We consider FFO in evaluating property acquisitions and our operating performance, and believe that FFO should be considered along with, but not as an alternative to, net income and cash flow as a measure of our activities in accordance with generally accepted accounting principles. FFO does not represent cash generated from operating activities in accordance with generally accepted accounting principles and is not necessarily indicative of cash available to fund cash needs.
Historical cost accounting for real estate assets in accordance with generally accepted accounting principles implicitly assumes that the value of real estate assets diminishes predictably over time. Since real estate values instead have historically risen or fallen with market conditions, many industry investors and analysts have considered the presentation of operating results for real estate companies that use historical cost accounting to be insufficient by themselves. Thus, NAREIT created FFO as a supplemental measure of REIT operating performance and defines FFO as net income (computed in accordance with accounting principles generally accepted in the United States), excluding gains (or losses) from sales of depreciable property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. The use of FFO, combined with the required presentations, has been fundamentally beneficial, improving the understanding of operating results of REITs among the investing public and making comparisons of REIT operating results more meaningful. We generally consider FFO to be a useful measure for reviewing our comparative operating and financial performance (although FFO should

 

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be reviewed in conjunction with net income which remains the primary measure of performance) because by excluding gains or (losses) related to sales of previously depreciated operating real estate assets and excluding real estate asset depreciation and amortization, FFO can help one compare the operating performance of a company’s real estate between periods or as compared to different companies. We believe that FFO is the best measure of economic profitability for real estate investment trusts.
The following table outlines our FFO calculation and reconciliation to generally accepted accounting principles for the three months ended March 31, 2009 and 2008 (dollars and shares in thousands):
                 
    Three Months Ended  
    March 31,  
    2009     2008  
 
Net (loss)/income attributable to UDR, Inc.
  $ (12,629 )   $ 723,719  
Adjustments:
               
Distributions to preferred stockholders
    (2,800 )     (3,209 )
Real estate depreciation and amortization, including discontinued operations
    68,985       52,435  
Non-controlling interest
    (794 )     48,736  
Real estate depreciation and amortization on unconsolidated joint ventures
    1,143       745  
Net gains on the sale of depreciable property, excluding RE3
    168       (767,962 )
 
           
 
               
Funds from operations — basic
  $ 54,073     $ 54,464  
 
           
 
               
Distributions to preferred stockholders — Series E (Convertible)
    931       931  
 
           
 
               
Funds from operations — diluted
  $ 55,004     $ 55,395  
 
           
 
               
Write-off of convertible debt premium due to adoption of APB 14-1
    1,754        
Amortization of convertible debt premium due to adoption of APB 14-1
    1,296       1,670  
 
           
 
               
Funds from operations as adjusted — diluted
  $ 58,054     $ 57,065  
 
           
 
               
Weighted average number of common shares and OP Units outstanding — basic
    155,662       152,251  
 
               
Weighted average number of common shares and OP Units outstanding — diluted
    158,763       156,095  
In the computation of diluted FFO, when OP Units, out-performance partnership units, convertible debt, unvested restricted stock, stock options, and the shares of Series E Cumulative Convertible Preferred Stock are dilutive; they are included in the diluted share count.
RE3 is our subsidiary that focuses on development, land entitlement and short-term hold investments. RE3 tax benefits and gain on sales, net of taxes, is defined as net sales proceeds less a tax provision and the gross investment basis of the asset before accumulated depreciation. We consider FFO with RE3 tax benefits and gain on sales, net of taxes, to be a meaningful supplemental measure of performance because the short-term use of funds produce a profit that differs from the traditional long-term investment in real estate for REITs.

 

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The following table is our reconciliation of FFO share information to weighted average common shares outstanding, basic and diluted, reflected on the Consolidated Statements of Operations for the three months ended March 31, 2009 and 2008 (shares in thousands):
                 
    Three Months Ended  
    March 31,  
    2009     2008  
 
Weighted average number of common shares and OP units outstanding basic
    155,662       152,251  
Weighted average number of OP units outstanding
    (8,048 )     (9,704 )
 
           
Weighted average number of common shares outstanding - basic per the Consolidated Statement of Operations
    147,614       142,547  
 
           
 
               
Weighted average number of common shares, OP units, and common stock equivalents outstanding — diluted
    158,763       156,095  
Weighted average number of OP units outstanding
    (8,048 )     (9,704 )
Weighted average incremental shares from assumed conversion of stock options
    (18 )     (565 )
Weighted average incremental shares from unvested restricted stock
    (47 )     (243 )
Weighted average number of Series E preferred shares outstanding
    (3,036 )     (3,036 )
 
           
 
               
Weighted average number of common shares outstanding — diluted per the Consolidated Statements of Operations
    147,614       142,548  
 
           
FFO also does not represent cash generated from operating activities in accordance with generally accepted accounting principles, and therefore should not be considered an alternative to net cash flows from operating activities, as determined by generally accepted accounting principles, as a measure of liquidity. Additionally, it is not necessarily indicative of cash availability to fund cash needs.
A presentation of cash flow metrics based on generally accepted accounting principles is as follows for the three months ended March 31, (dollars in thousands):
                 
    March 31,  
    2009     2008  
 
Net cash provided by operating activities
  $ 71,557     $ 22,434  
Net cash (used in)/provided byinvesting activities
    (99,215 )     577,118  
Net cash provided by/(used in) financing activities
    52,050       (542,584 )

 

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Results of Operations
The following discussion includes the results of both continuing and discontinued operations for the periods presented.
Net (Losses)/Income Available to Common Stockholders
Net loss available to common stockholders was ($15.4) million (($0.10) per diluted share) for the three months ended March 31, 2009, as compared to net income of $720.5 million ($5.05 per diluted share) for the comparable period in the prior year. The decrease for the three months ended March 31, 2009, when compared to the same period in 2008, resulted primarily from the following item, which is discussed in further detail elsewhere within this report:
    a reduction in the Company’s disposition activities and the associated gains during the three months ended March 31, 2009 relative to the prior year. The Company recognized a net loss of $168,000 and a net gain of $767.1 million during the three months ended March 31, 2009 and 2008, respectively. The Company does not believe it will have significant disposition activity during the remainder of 2009, and
 
    an increase in depreciation expense due to the Companies purchase of operating acquisitions and the completion of two development communities in 2008.
The reduction in net operating income was offset by the following:
    a decrease in interest expense due to a reduction in corporate debt and the Company recording a gain on extinguishment of debt on the repurchase of a portion of our outstanding senior unsecured notes, which is presented as a reduction to interest expense, and
 
    a decrease in minority interest expense.
Apartment Community Operations
The following table summarizes the operating performance of our total apartment portfolio for each of the periods presented (dollars in thousands):
                         
    Three Months Ended  
    March 31,  
    2009     2008     % Change  
 
Property rental income
  $ 149,748     $ 165,710       -9.6 %
Property operating expense (a)
    (50,615 )     (59,999 )     -15.6 %
 
                 
Property net operating income
  $ 99,133     $ 105,711       -6.2 %
 
                 
     
(a)   Excludes depreciation, amortization and property management expenses.

 

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The following table is our reconciliation of property net operating income to net income as reflected on the Consolidated Statements of Operations for the periods presented (dollars in thousands):
                 
    Three Months Ended  
    March 31,  
    2009     2008  
 
Property net operating income
  $ 99,133     $ 105,711  
Other net operating (loss)/income
    (80 )     2,603  
Non-property income, net
    5,024       4,627  
Real estate depreciation and amortization
    (68,985 )     (52,435 )
Interest
    (30,692 )     (40,016 )
General and administrative and property management
    (13,997 )     (14,322 )
Other expenses
    (1,496 )     (1,004 )
Other depreciation and amortization
    (1,394 )     (929 )
Loss from unconsolidated entities
    (717 )     (374 )
Tax (expense)/benefit for the TRS
    (51 )     1,265  
Net (loss)/gain on sale of land and depreciable property
    (168 )     767,329  
Non-controlling interests
    794       (48,736 )
 
           
Net (loss)/income per the Consolidated Statement of Operations
  $ (12,629 )   $ 723,719  
 
           
Same Communities
Our same communities (those communities acquired, developed, and stabilized prior to January 1, 2008, and held on March 31, 2009, which consisted of 33,636 apartment homes) provided 78% of our property net operating income for the three months ended March 31, 2009.
For the first quarter of 2009, same community properties net operating income increased 1.9% or $1.4 million compared to the same period in 2008. The increase in property net operating income was primarily attributable to a 0.4% or $471,000 increase in revenues from rental and other income. The increase in revenues from rental and other income was primarily driven by a 24.8% or $102,000 decrease in rental concessions, a 7.3% or $412,000 decrease in vacancy loss, and a 13.9% or $562,000 increase in reimbursement income. Physical occupancy increased slightly from 94.5% to 94.7% and total income per occupied home increased $3 to $1,176.
Property operating expenses decreased by 2.7% or $975,000 during the first quarter of 2009 compared to the same period in 2008. The decrease in property operating expenses was primarily driven by a 6.2% or $584,000 decrease in personnel costs including bonuses and a 9.2% or $533,000 decrease in repairs and maintenance expense.
As a result of the percentage changes in property rental income and property operating expenses, the operating margin (property net operating income divided by property rental income) increased to 68.4% as compared to 67.4% in the comparable period in the prior year.

 

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Non-Mature Communities
The remaining 22% or $22.3 million of our property net operating income during the three months ended March 31, 2009, was generated from communities that we classify as “non-mature communities.” UDR’s non-mature communities consist primarily of sold properties, communities acquired or developed in 2007 and 2008, redevelopment properties, and condominium properties. The largest components of our non-mature portfolio for the three months ended March 31, 2009 are our communities acquired. For the three months ended March 31, 2009, acquisitions represented $13.5 million of property net operating income.
Other Income
For the three months ended March 31, 2009, significant amounts reflected in other income include: interest income from a note for $200 million that the Company received related to the disposition of 86 properties during 2008, interest income and discount amortization from an interest in a convertible debt security, and fees earned for both recurring and non-recurring items related to the Company’s joint ventures. On May 4, 2009, the $200 million note was paid in full.
Real Estate Depreciation and Amortization
For the three months ended March 31, 2009, real estate depreciation and amortization on both continuing and discontinued operations increased 31.6% or $16.6 million as compared to the comparable period in 2008. The increase in real estate depreciation and amortization for the three months ended March 31, 2009 is due to the Company’s acquisition activity during the year, which includes a portion of the purchase price allocated to intangible assets upon acquisition of a community and the associated amortization of the majority of the acquired intangibles over a period of less than one year.
Interest Expense
For the three months ended March 31, 2009, interest expense on both continuing and discontinued operations decreased 23.3% or $9.3 million as compared to the comparable period in 2008. This decrease is primarily due to a $2.4 million increase in gains recognized on debt extinguishment upon the redemption of unsecured notes and the reduction of the weighted average interest rate from 5.2% in 2008 to 4.5% in 2009. The decrease in the weighted average interest rate in 2009 reflects short-term bank borrowings and variable rate debt that had lower interest rates in 2009 when compared to the same period in 2008.
General and Administrative
For the three months ended March 31, 2009, general and administrative expenses increased 0.9% or $86,000 as compared to the comparable period in 2008. The increase was due to a number of factors, none of which were significant.
Gains on the Sales of Depreciable Property
For the three months ended March 31, 2009, we recognized after-tax losses for financial reporting purposes of ($168,000) as compared to net gains of $767.1 million for the comparable period in 2008. Changes in the level of gains recognized from period to period reflect the changing level of our divestiture activity from period to period, as well as the extent of gains related to specific properties sold. The significant decrease in gains on disposition for the three months ended March 31, 2009 and compared to the same period in 2008, is a result of the March 2008 sale of 84 communities generally located in non-core markets as the Company repositions our real estate portfolio.

 

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Inflation
We believe that the direct effects of inflation on our operations have been immaterial. While the impact of inflation primarily impacts our results through wage pressures, utilities and material costs, substantially all of our leases are for a term of one year or less, which generally enables us to compensate for any inflationary effects by increasing rents on our apartment homes. Although an extreme escalation in energy and food costs could have a negative impact on our residents and their ability to absorb rent increases, we do not believe this has had a material impact on our results for the three months ended March 31, 2009.
Off-Balance Sheet Arrangements
UDR has entered into a contract to purchase an apartment community of 289 homes in Dallas, Texas for approximately $29.0 million upon completion of the development. The apartment community is expected to be completed in the third quarter of 2009.
Other than the purchase contract listed above, we do not have any other off-balance sheet arrangements that have, or are reasonably likely to have, a current or future effect on our financial condition, changes in financial condition, revenue or expenses, results of operations, liquidity, capital expenditures or capital resources that are material.
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to interest rate changes associated with our unsecured credit facility and other variable rate debt as well as refinancing risk on our fixed rate debt. UDR’s involvement with derivative financial instruments is limited and we do not expect to use them for trading or other speculative purposes. UDR uses derivative instruments solely to manage its exposure to interest rates.
See our Annual Report on Form 10-K for the year ended December 31, 2008 “Item 7A. Quantitative and Qualitative Disclosures About Market Risk” for a more complete discussion of our interest rate sensitive assets and liabilities. As of March 31, 2009, our market risk has not changed materially from the amounts reported on our Annual Report on Form 10-K for the year ended December 31, 2008.

 

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Item 4. CONTROLS AND PROCEDURES
As of March 31, 2009, we carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Our disclosure controls and procedures are designed with the objective of ensuring that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective in timely alerting them to material information required to be included in our periodic SEC reports. In addition, our Chief Executive Officer and our Chief Financial Officer concluded that during the quarter ended March 31, 2009, there has been no change in our internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. Our internal control over financial reporting is designed with the objective of providing reasonable assurance regarding the reliability of our financial reporting and preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
It should be noted that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions, regardless of how remote. However, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures are effective under circumstances where our disclosure controls and procedures should reasonably be expected to operate effectively.

 

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PART II — OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
The Company is a party to various claims and routine litigation arising in the ordinary course of business. We do not believe that the results of any such claims and litigation, individually or in the aggregate, will have a material averse effect on our business, financial position or results of operations.
Item 1A. RISK FACTORS
There are many factors that affect our business and our results of operations, some of which are beyond our control. The following is a description of important factors that may cause our actual results of operations in future periods to differ materially from those currently expected or discussed in forward-looking statements set forth in this report relating to our financial results, operations and business prospects. Except as required by law, we undertake no obligation to update any such forward-looking statements to reflect events or circumstances after the date on which it is made.
Risks Related to Our Real Estate Investments and Our Operations
Unfavorable Apartment Market and Economic Conditions Could Adversely Affect Occupancy Levels, Rental Revenues and the Value of Our Real Estate Assets. Unfavorable market conditions in the areas in which we operate and unfavorable economic conditions generally may significantly affect our occupancy levels, our rental rates and collections, the value of the properties and our ability to strategically acquire or dispose of apartment communities on economically favorable terms. Some of our major expenses, including mortgage payments and real estate taxes, generally do not decline when related rents decline. We would expect that declines in our occupancy levels, rental revenues and/or the values of our apartment communities would cause us to have less cash available to pay our indebtedness and to distribute to our stockholders, which could adversely affect our financial condition and the market value of our securities. Factors that may affect our occupancy levels, our rental revenues, and/or the value of our properties include the following, among others:
    downturns in the national, regional and local economic conditions, particularly increases in unemployment;
 
    declines in mortgage interest rates, making alternative housing more affordable;
 
    government or builder incentives which enable first time homebuyers to put little or no money down, making alternative housing options more attractive;
 
    local real estate market conditions, including oversupply of, or reduced demand for, apartment homes;
 
    declines in the financial condition of our tenants, which may make it more difficult for us to collect rents from some tenants;
 
    changes in market rental rates;
 
    the timing and costs associated with property improvements, repairs or renovations;
 
    declines in household formation; and
 
    rent control or stabilization laws, or other laws regulating rental housing, which could prevent us from raising rents to offset increases in operating costs.

 

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We Are Subject to Certain Risks Associated with Selling Apartment Communities, Which Could Limit Our Operational and Financial Flexibility. We have periodically disposed of apartment communities that no longer meet our strategic objectives, but adverse market conditions may make it difficult to sell apartment communities like the ones we own, and purchasers may not be willing to pay prices acceptable to us. These conditions may limit our ability to dispose of properties and to change our portfolio promptly in order to meet our strategic objectives, which may in turn have a materially adverse effect on our financial condition and the market value of our securities. We are also subject to the following risks in connection with sales of our apartment communities:
    a significant portion of the proceeds from our overall property sales may be held by intermediaries in order for some sales to qualify as like-kind exchanges under Section 1031 of the Internal Revenue Code, so that any related capital gain can be deferred for federal income tax purposes. As a result, we may not have immediate access to all of the cash flow generated from our property sales;
 
    federal tax laws limit our ability to profit on the sale of communities that we have owned for fewer than four years, and this limitation may prevent us from selling communities when market conditions are favorable; further
We May Not Have Access to Proceeds Obtained From the Sale of Apartment Communities. A significant portion of the proceeds from our overall property sales may be held by intermediaries in order for some sales to qualify as like-kind exchanges under Section 1031 of the Code, so that any related capital gain can be deferred for federal income tax purposes. As a result, we may not have immediate access to all of the cash flow generated from our property sales. In addition, federal tax laws limit our ability to profit on the sale of communities that we have owned for fewer than four years, and this limitation may prevent us from selling communities when market conditions are favorable.
Competition Could Limit Our Ability to Lease Apartment Homes or Increase or Maintain Rents. Our apartment communities compete with numerous housing alternatives in attracting residents, including other apartment communities, condominiums and single-family rental homes, as well as owner occupied single- and multi-family homes. Competitive housing in a particular area could adversely affect our ability to lease apartment homes and increase or maintain rents.
We May Not Realize the Anticipated Benefits of Past or Future Acquisitions, and the Failure to Integrate Acquired Communities and New Personnel Successfully Could Create Inefficiencies. We have selectively acquired in the past, and if presented with attractive opportunities we intend to selectively acquire in the future, apartment communities that meet our investment criteria. Our acquisition activities and their success are subject to the following risks:
    we may be unable to obtain financing for acquisitions on favorable terms or at all;
 
    even if we enter into an acquisition agreement for an apartment community, we may be unable to complete the acquisition after incurring certain acquisition-related costs;
 
    an acquired apartment community may fail to perform as we expected in analyzing our investment, or a significant exposure related to the acquired property may go undetected during our due diligence procedures;
 
    when we acquire an apartment community, we may invest additional amounts in it with the intention of increasing profitability, and these additional investments may not produce the anticipated improvements in profitability; and
 
    we may be unable to quickly and efficiently integrate acquired apartment communities and new personnel into our existing operations, and the failure to successfully integrate such apartment communities or personnel will result in inefficiencies that could adversely affect our expected return on our investments and our overall profitability.

 

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We do not expect to acquire apartment communities at the rate we have in prior years, which may limit our growth and have a material adverse effect on our business and the market value of our securities. In the past, other real estate investors, including insurance companies, pension and investment funds, developer partnerships, investment companies and other apartment REITs, have competed with us to acquire existing properties and to develop new properties, and such competition in the future may make it more difficult for us to pursue attractive investment opportunities on favorable terms, which could adversely affect growth.
Development and Construction Risks Could Impact Our Profitability. In the past we have selectively pursued the development and construction of apartment communities, and we intend to do so in the future as appropriate opportunities arise. Development activities have been, and in the future may be, conducted through wholly owned affiliated companies or through joint ventures with unaffiliated parties. Our development and construction activities are subject to the following risks:
    we may be unable to obtain construction financing for development activities under favorable terms, including but not limited to interest rates, maturity dates and/or loan to value ratios, or at all which could cause us to delay or even abandon potential developments;
 
    we may be unable to obtain, or face delays in obtaining, necessary zoning, land-use, building, occupancy and other required governmental permits and authorizations, which could result in increased development costs, could delay initial occupancy dates for all or a portion of a development community, and could require us to abandon our activities entirely with respect to a project for which we are unable to obtain permits or authorizations;
 
    if we are unable to find joint venture partners to help fund the development of a community or otherwise obtain acceptable financing for the developments, our development capacity may be limited;
 
    we may abandon development opportunities that we have already begun to explore, and we may fail to recover expenses already incurred in connection with exploring such opportunities;
 
    we may be unable to complete construction and lease-up of a community on schedule, or incur development or construction costs that exceed our original estimates, and we may be unable to charge rents that would compensate for any increase in such costs;
 
    occupancy rates and rents at a newly developed community may fluctuate depending on a number of factors, including market and economic conditions, preventing us from meeting our profitability goals for that community; and
 
    when we sell to third parties communities or properties that we developed or renovated, we may be subject to warranty or construction defect claims that are uninsured or exceed the limits of our insurance.
In some cases in the past, the costs of upgrading acquired communities exceeded our original estimates. We may experience similar cost increases in the future. Our inability to charge rents that will be sufficient to offset the effects of any increases in these costs may impair our profitability.
Some Potential Losses May Not Be Adequately Covered by Insurance. We have a comprehensive insurance program covering our property and operating activities. We believe the policy specifications and insured limits of these policies are adequate and appropriate. There are, however, certain types of extraordinary losses which may not be adequately covered under our insurance program. In addition, we will sustain losses due to insurance deductibles, self-insured retention, uninsured claims or casualties, or losses in excess of applicable coverage.

 

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If an uninsured loss or a loss in excess of insured limits occur, we could lose all or a portion of the capital we have invested in a property, as well as the anticipated future revenue from the property. In such an event, we might nevertheless remain obligated for any mortgage debt or other financial obligations related to the property. Material losses in excess of insurance proceeds may occur in the future. If one or more of our significant properties were to experience a catastrophic loss, it could seriously disrupt our operations, delay revenue and result in large expenses to repair or rebuild the property. Such events could adversely affect our cash flow and ability to make distributions to our stockholders.
Failure to Succeed in New Markets May Limit Our Growth. We have acquired in the past, and we may acquire in the future if appropriate opportunities arise, apartment communities that are outside of our existing market. Entering into new markets may expose us to a variety of risks, and we may not be able to operate successfully in new markets. These risks include, among others:
    inability to accurately evaluate local apartment market conditions and local economies;
 
    inability to hire and retain key personnel;
 
    lack of familiarity with local governmental and permitting procedures; and
 
    inability to achieve budgeted financial results.
Risk of Inflation/Deflation. Substantial inflationary or deflationary pressures could have a negative effect on rental rates and property operating expenses. Although inflation has not materially impacted our operations in the recent past, increased inflation could have a more pronounced negative impact on our debt interest and general and administrative expenses, as these costs could increase at a rate higher than our rental rates.
Potential Liability for Environmental Contamination Could Result in Substantial Costs. Under various federal, state and local environmental laws, as a current or former owner or operator of real estate, we could be required to investigate and remediate the effects of contamination of currently or formerly owned real estate by hazardous or toxic substances, often regardless of our knowledge of or responsibility for the contamination and solely by virtue of our current or former ownership or operation of the real estate. In addition, we could be held liable to a governmental authority or to third parties for property damage and for investigation and clean-up costs incurred in connection with the contamination. These costs could be substantial, and in many cases environmental laws create liens in favor of governmental authorities to secure their payment. The presence of such substances or a failure to properly remediate any resulting contamination could materially and adversely affect our ability to borrow against, sell or rent an affected property.
Property Ownership Through Joint Ventures May Limit Our Ability to Act Exclusively in Our Interest. We have in the past and may in the future develop and acquire properties in joint ventures with other persons or entities when we believe circumstances warrant the use of such structures. If we use such a structure, we could become engaged in a dispute with one or more of our joint venture partners that might affect our ability to operate a jointly-owned property. Moreover, joint venture partners may have business, economic or other objectives that are inconsistent with our objectives, including objectives that relate to the appropriate timing and terms of any sale or refinancing of a property. In some instances, joint venture partners may have competing interests in our markets that could create conflicts of interest.
Compliance or Failure to Comply with the Americans with Disabilities Act of 1990 or Other Safety Regulations and Requirements Could Result in Substantial Costs. The Americans with Disabilities Act generally requires that public buildings, including our properties, be made accessible to disabled persons. Noncompliance could result in the imposition of fines by the federal government or the award of damages to private litigants. From time to time claims may be asserted against us with respect to some of our properties under this Act. If, under the Americans with Disabilities Act, we are required to make substantial alterations and capital expenditures in one or more of our properties, including the removal of access barriers, it could adversely affect our financial condition and results of operations.

 

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Our properties are subject to various federal, state and local regulatory requirements, such as state and local fire and life safety requirements. If we fail to comply with these requirements, we could incur fines or private damage awards. We do not know whether existing requirements will change or whether compliance with future requirements will require significant unanticipated expenditures that will affect our cash flow and results of operations.
Real Estate Tax and Other Laws. Generally we do not directly pass through costs resulting from compliance with or changes in real estate tax laws to residential property tenants. We also do not generally pass through increases in income, service or other taxes, to tenants under leases. These costs may adversely affect net operating income and the ability to make distributions to stockholders. Similarly, compliance with or changes in (i) laws increasing the potential liability for environmental conditions existing on properties or the restrictions on discharges or other conditions or (ii) rent control or rent stabilization laws or other laws regulating housing, such as the Americans with Disabilities Act and the Fair Housing Amendments Act of 1988, may result in significant unanticipated expenditures, which would adversely affect funds from operations and the ability to make distributions to stockholders.
Risk of Damage from Catastrophic Weather Events. Certain of our communities are located in the general vicinity of active earthquake faults, mudslides and fires, and others where there are hurricanes, tornadoes or risks of other inclement weather. The adverse weather events could cause damage or losses that may be greater than insured levels. In the event of a loss in excess of insured limits, we could lose our capital invested in the affected community, as well as anticipated future revenue from that community. We would also continue to be obligated to repay any mortgage indebtedness or other obligations related to the community. Any such loss could materially and adversely affect our business and our financial condition and results of operations.
Actual or Threatened Terrorist Attacks May Have an Adverse Effect on Our Business and Operating Results and Could Decrease the Value of Our Assets. Actual or threatened terrorist attacks and other acts of violence or war could have a material adverse effect on our business and operating results. Attacks that directly impact one or more of our apartment communities could significantly affect our ability to operate those communities and thereby impair our ability to achieve our expected results. Further, our insurance coverage may not cover all losses caused by a terrorist attack. In addition, the adverse effects that such violent acts and threats of future attacks could have on the U.S. economy could similarly have a material adverse effect on our business and results of operations.
Any Weaknesses Identified in Our Internal Control Over Financial Reporting Could Have an Adverse Effect on Our Stock Price. Section 404 of the Sarbanes-Oxley Act of 2002 requires us to evaluate and report on our internal control over financial reporting. If we identify one or more material weaknesses in our internal control over financial reporting, we could lose investor confidence in the accuracy and completeness of our financial reports, which in turn could have an adverse effect on our stock price.
Our Success Depends on Our Senior Management. Our success depends upon the retention of our senior management, whose continued service in not guaranteed. We may not be able to find qualified replacements for the individuals who make up our senior management if their services should no longer be available to us. The loss of services of one or more members of our senior management team could have a material adverse effect on our business, financial condition and results of operations.
Risks Related to Our Indebtedness and Financing
Insufficient Cash Flow Could Affect Our Debt Financing and Create Refinancing Risk. We are subject to the risks normally associated with debt financing, including the risk that our operating income and cash flow will be insufficient to make required payments of principal and interest, or could restrict our borrowing capacity under our line of credit due to debt covenant restraints. Sufficient cash flow may not be available to make all required principal payments and still satisfy our distribution requirements to maintain our status as a REIT for federal income tax purposes, and the full limits of our line of credit may not be available to us if our operating performance falls outside the constraints of our debt covenants. Additionally, we are likely to need to refinance substantially all of our outstanding debt as it matures. We may not be able to refinance existing debt, or the terms of any refinancing may not be as favorable as the terms of the existing debt, which could create pressures to sell assets or to issue additional equity when we would otherwise not choose to do so. In addition, our failure to comply with our debt covenants could result in a requirement to repay our indebtedness prior to its maturity, which could have an adverse effect on our cash flow and increase our financing costs.

 

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Failure to Generate Sufficient Revenue Could Impair Debt Service Payments and Distributions to Stockholders. If our apartment communities do not generate sufficient net rental income to meet rental expenses, our ability to make required payments of interest and principal on our debt securities and to pay distributions to our stockholders will be adversely affected. The following factors, among others, may affect the net rental income generated by our apartment communities:
    the national and local economies;
 
    local real estate market conditions, such as an oversupply of apartment homes;
 
    tenants’ perceptions of the safety, convenience, and attractiveness of our communities and the neighborhoods where they are located;
 
    our ability to provide adequate management, maintenance and insurance;
 
    rental expenses, including real estate taxes and utilities;
 
    changes in interest rates and the availability of financing; and
 
    changes in tax and housing laws, including the enactment of rent control laws or other laws regulating multi-family housing.
Expenses associated with our investment in an apartment community, such as debt service, real estate taxes, insurance and maintenance costs, are generally not reduced when circumstances cause a reduction in rental income from that community. If a community is mortgaged to secure payment of debt and we are unable to make the mortgage payments, we could sustain a loss as a result of foreclosure on the community or the exercise of other remedies by the mortgage holder.
Debt Level May Be Increased. Our current debt policy does not contain any limitations on the level of debt that we may incur, although our ability to incur debt is limited by covenants in our bank and other credit agreements. We manage our debt to be in compliance with these debt covenants, but subject to compliance with these covenants, we may increase the amount of our debt at any time without a concurrent improvement in our ability to service the additional debt.
Financing May Not Be Available and Could Be Dilutive. Our ability to execute our business strategy depends on our access to an appropriate blend of debt financing, including unsecured lines of credit and other forms of secured and unsecured debt, and equity financing, including common and preferred equity. We and other companies in the real estate industry have experienced limited availability of financing from time to time. If we issue additional equity securities to finance developments and acquisitions instead of incurring debt, the interests of our existing stockholders could be diluted.
Financing Could be Impacted by Negative Capital Market Conditions. Recently, domestic financial markets have experienced unusual volatility and uncertainty. While this condition has occurred most visibly within the “subprime” mortgage lending sector of the credit market, liquidity has tightened in overall domestic financial markets, including the investment grade debt and equity capital markets. Consequently, there is greater risk that the financial institutions we do business with could experience disruptions that would negatively affect our ability to obtain financing.
Disruptions in Financial Markets May Adversely Impact Availability and Cost of Credit, Impact Our Tenant Base, and Have other Adverse Effects on Us and the Market Price of Our Stock. Our ability to make scheduled payments or to refinance debt obligations will depend on our operating and financial performance, which in turn is subject to prevailing economic conditions and to financial, business and other factors beyond our control. The United States stock and credit markets have recently experienced significant price volatility, dislocations and liquidity disruptions, which have caused market prices of many

 

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stocks to fluctuate substantially and the spreads on prospective debt financings to widen considerably. These circumstances have materially impacted liquidity in the financial markets, making terms for certain financings less attractive, and in some cases have resulted in the unavailability of financing. Continued uncertainty in the stock and credit markets may negatively impact our ability to access additional financing for acquisitions, development of our properties and other purposes at reasonable terms, which may negatively affect our business. Additionally, due to this uncertainty, we may be unable to refinance our existing indebtedness or the terms of any refinancing may not be as favorable as the terms of our existing indebtedness. If we are not successful in refinancing this debt when it becomes due, we may be forced to dispose of properties on disadvantageous terms, which might adversely affect our ability to service other debt and to meet our other obligations. A prolonged downturn in the financial markets may cause us to seek alternative sources of potentially less attractive financing, and may require us to adjust our business plan accordingly. These events also may make it more difficult or costly for us to raise capital through the issuance of our common or preferred stock. The disruptions in the financial markets have had and may continue to have a material adverse effect on the market value of our common shares and other adverse effects on us and our business.
Prospective buyers of our properties may also experience difficulty in obtaining debt financing which might make it more difficult for us to sell properties at acceptable pricing levels. Current tightening of credit in financial markets and increasing unemployment may also adversely affect the ability of tenants to meet their lease obligations and for us to continue increasing rents on a prospective basis. Disruptions in the credit and financial markets may also have other adverse effects on us and the overall economy.
The Soundness of Financial Institutions Could Adversely Affect Us. We have relationships with many financial institutions, including lenders under our credit facilities, and, from time to time, we execute transactions with counterparties in the financial services industry. As a result, defaults by, or even rumors or questions about, financial institutions or the financial services industry generally, could result in losses or defaults by these institutions. In the event that the volatility of the financial markets adversely affects these financial institutions or counterparties, we or other parties to the transactions with us may be unable to complete transactions as intended, which could adversely affect our business and results of operations.
Changing Interest Rates Could Increase Interest Costs and Adversely Affect Our Cash Flow and the Market Price of Our Securities. We currently have, and expect to incur in the future, interest-bearing debt at rates that vary with market interest rates. As of March 31, 2009, we had approximately $627.1 million of variable rate indebtedness outstanding, which constitutes approximately 18.7% of our total outstanding indebtedness as of such date. An increase in interest rates would increase our interest expenses and increase the costs of refinancing existing indebtedness and of issuing new debt. Accordingly, higher interest rates could adversely affect cash flow and our ability to service our debt and to make distributions to security holders. The effect of prolonged interest rate increases could negatively impact our ability to make acquisitions and develop properties. In addition, an increase in market interest rates may lead our security holders to demand a higher annual yield, which could adversely affect the market price of our common and preferred stock and debt securities.
Interest Rate Hedging Contracts May Be Ineffective and May Result in Material Charges. From time to time when we anticipate issuing debt securities, we may seek to limit our exposure to fluctuations in interest rates during the period prior to the pricing of the securities by entering into interest rate hedging contracts. We may do this to increase the predictability of our financing costs. Also, from time to time we may rely on interest rate hedging contracts to limit our exposure under variable rate debt to unfavorable changes in market interest rates. If the terms of new debt securities are not within the parameters of, or market interest rates fall below that which we incur under a particular interest rate hedging contract, the contract is ineffective. Furthermore, the settlement of interest rate hedging contracts has involved and may in the future involve material charges.

 

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Risks Related to Tax Laws
We Would Incur Adverse Tax Consequences if We Fail to Qualify as a REIT. We have elected to be taxed as a REIT under the Internal Revenue Code. Our qualification as a REIT requires us to satisfy numerous requirements, some on an annual and quarterly basis, established under highly technical and complex Code provisions for which there are only limited judicial or administrative interpretations, and involves the determination of various factual matters and circumstances not entirely within our control. We intend that our current organization and method of operation enable us to continue to qualify as a REIT, but we may not so qualify or we may not be able to remain so qualified in the future. In addition, U.S. federal income tax laws governing REITs and other corporations and the administrative interpretations of those laws may be amended at any time, potentially with retroactive effect. Future legislation, new regulations, administrative interpretations or court decisions could adversely affect our ability to qualify as a REIT or adversely affect our stockholders.
If we fail to qualify as a REIT in any taxable year, we would be subject to federal income tax (including any applicable alternative minimum tax) on our taxable income at regular corporate rates, and would not be allowed to deduct dividends paid to our stockholders in computing our taxable income. Also, unless the Internal Revenue Service granted us relief under certain statutory provisions, we would be disqualified from treatment as a REIT for the four taxable years following the year in which we first failed to qualify. The additional tax liability from the failure to qualify as a REIT would reduce or eliminate the amount of cash available for investment or distribution to our stockholders. This would likely have a significant adverse effect on the value of our securities and our ability to raise additional capital. In addition, we would no longer be required to make distributions to our stockholders. Even if we continue to qualify as a REIT, we will continue to be subject to certain federal, state and local taxes on our income and property.
REITs May Pay a Portion of Dividends in Common Stock. In December 2008, the Internal Revenue Service issued Revenue Procedure 2008-68, providing temporary guidance that assists publicly traded REITs in satisfying their tax-related distribution requirements while conserving cash. This temporary guidance is intended to permit REITs to limit cash distributions in order to maintain liquidity during the current downturn in economic conditions. Under this guidance, effective January 1, 2008 and ending on or before December 31, 2009, the Internal Revenue Service will treat a distribution of stock by a publicly traded REIT, pursuant to certain elections to receive stock or cash, as a taxable distribution of property. The amount of such stock distribution will be treated as equal to the amount of cash that could have been received instead. The guidance permits REITs to limit the aggregate amount of cash available to stockholders pursuant to the election to 10% of the aggregate distribution of cash and stock taken together. If we pay a portion of our dividends in shares of our common stock pursuant to this temporary guidance, our stockholders may receive less cash than they received in distributions in prior years and the market value of our securities may decline.
We May Conduct a Portion of Our Business Through Taxable REIT Subsidiaries, Which are Subject to Certain Tax Risks. We have established several taxable REIT subsidiaries. Despite our qualification as a REIT, our taxable REIT subsidiaries must pay income tax on their taxable income. In addition, we must comply with various tests to continue to qualify as a REIT for federal income tax purposes, and our income from and investments in our taxable REIT subsidiaries generally do not constitute permissible income and investments for these tests. While we will attempt to ensure that our dealings with our taxable REIT subsidiaries will not adversely affect our REIT qualification, we cannot provide assurance that we will successfully achieve that result. Furthermore, we may be subject to a 100% penalty tax, we may jeopardize our ability to retain future gains on real property sales, or our taxable REIT subsidiaries may be denied deductions, to the extent our dealings with our taxable REIT subsidiaries are not deemed to be arm’s length in nature or are otherwise not respected.
REIT Distribution Requirements Limit Our Available Cash. As a REIT, we are subject to annual distribution requirements, which limit the amount of cash we retain for other business purposes, including amounts to fund our growth. We generally must distribute annually at least 90% of our net REIT taxable income, excluding any net capital gain, in order for our distributed earnings not to be subject to corporate income tax. We intend to make distributions to our stockholders to comply with the requirements of the Code. However, differences in timing between the recognition of taxable income and the actual receipt of cash could require us to sell assets or borrow funds on a short-term or long-term basis to meet the 90% distribution requirement of the Code.

 

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Certain Property Transfers May Generate Prohibited Transaction Income, Resulting in a Penalty Tax on Gain Attributable to the Transaction. From time to time, we may transfer or otherwise dispose of some of our properties. Under the Internal Revenue Code, any gain resulting from transfers of properties that we hold as inventory or primarily for sale to customers in the ordinary course of business would be treated as income from a prohibited transaction and subject to a 100% penalty tax. Since we acquire properties for investment purposes, we do not believe that our occasional transfers or disposals of property are prohibited transactions. However, whether property is held for investment purposes is a question of fact that depends on all the facts and circumstances surrounding the particular transaction. The Internal Revenue Service may contend that certain transfers or disposals of properties by us are prohibited transactions. If the Internal Revenue Service were to argue successfully that a transfer or disposition of property constituted a prohibited transaction, then we would be required to pay a 100% penalty tax on any gain allocable to us from the prohibited transaction and we may jeopardize our ability to retain future gains on real property sales. In addition, income from a prohibited transaction might adversely affect our ability to satisfy the income tests for qualification as a REIT for federal income tax purposes.
We Could Face Possible State and Local Tax Audits and Adverse Changes in State and Local Tax Laws. As discussed in the risk factors above, because we are organized and qualify as a REIT we are generally not subject to federal income taxes, but we are subject to certain state and local taxes. From time to time, changes in state and local tax laws or regulations are enacted, which may result in an increase in our tax liability. A shortfall in tax revenues for states and municipalities in which we own apartment communities may lead to an increase in the frequency and size of such changes. If such changes occur, we may be required to pay additional state and local taxes. These increased tax costs could adversely affect our financial condition and the amount of cash available for the payment of distributions to our stockholders. In the normal course of business, entities through which we own real estate may also become subject to tax audits. If such entities become subject to state or local tax audits, the ultimate result of such audits could have an adverse effect on our financial condition.
Risks Related to Our Organization and Our Shares
Changes in Market Conditions and Volatility of Stock Prices Could Adversely Affect the Market Price of Our Common Stock. The stock markets, including the New York Stock Exchange, on which we list our common shares, have experienced significant price and volume fluctuations. As a result, the market price of our common stock could be similarly volatile, and investors in our common stock may experience a decrease in the value of their shares, including decreases unrelated to our operating performance or prospects.
Maryland Law May Limit the Ability of a Third Party to Acquire Control of Us, Which May Not be in Our Stockholders’ Best Interests. Maryland business statutes may limit the ability of a third party to acquire control of us. As a Maryland corporation, we are subject to various Maryland laws which may have the effect of discouraging offers to acquire our Company and of increasing the difficulty of consummating any such offers, even if our acquisition would be in our stockholders’ best interests. The Maryland General Corporation Law restricts mergers and other business combination transactions between us and any person who acquires beneficial ownership of shares of our stock representing 10% or more of the voting power without our board of directors’ prior approval. Any such business combination transaction could not be completed until five years after the person acquired such voting power, and generally only with the approval of stockholders representing 80% of all votes entitled to be cast and 66 2/3% of the votes entitled to be cast, excluding the interested stockholder, or upon payment of a fair price. Maryland law also provides generally that a person who acquires shares of our equity stock that represents 10% (and certain higher levels) of the voting power in electing directors will have no voting rights unless approved by a vote of two-thirds of the shares eligible to vote.

 

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Limitations on Share Ownership and Limitations on the Ability of Our Stockholders to Effect a Change in Control of Our Company May Prevent Takeovers That are Beneficial to Our Stockholders. One of the requirements for maintenance of our qualification as a REIT for U.S. federal income tax purposes is that no more than 50% in value of our outstanding capital stock may be owned by five or fewer individuals, including entities specified in the Internal Revenue Code, during the last half of any taxable year. Our charter contains ownership and transfer restrictions relating to our stock primarily to assist us in complying with this and other REIT ownership requirements; however, the restrictions may have the effect of preventing a change of control, which does not threaten REIT status. These restrictions include a provision that generally limits ownership by any person of more than 9.9% of the value of our outstanding equity stock, unless our board of directors exempts the person from such ownership limitation, provided that any such exemption shall not allow the person to exceed 13% of the value of our outstanding equity stock. These provisions may have the effect of delaying, deferring or preventing someone from taking control of us, even though a change of control might involve a premium price for our stockholders or might otherwise be in our stockholders’ best interests.
Item 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Unregistered Sales of Equity Securities
On March 23, 2009, the Company issued and sold a total of 2,237,282 shares of its Series F Preferred Stock, without par value, to certain accredited investors who hold limited partnership interests, or OP Units, in United Dominion Realty, L.P., which is one of the Company’s operating partnerships. The shares of Series F Preferred Stock were sold at a purchase price of $0.0001 per share, for an aggregate purchase price of $223.73. Information regarding the offering and sale of these shares of Series F Preferred Stock is set forth in our Current Report on Form 8-K dated March 23, 2009 and filed with the Securities and Exchange Commission on March 25, 2009 (Commission File No. 1-10524).
In addition, on March 27, 2009, the Company issued and sold a total of 25,126 shares of its Series F Preferred stock to an accredited investor holding OP Units at a purchase price of $0.0001 per share, for an aggregate purchase price of $2.52.
Because the shares of Series F Preferred Stock described above were sold to accredited investors in transactions not involving a public offering, the transactions are exempt from registration under the Securities Act of 1933 in accordance with Section 4(2) of the Securities Act.
Repurchase of Equity Securities
In February 2006, our Board of Directors authorized a 10 million share repurchase program. In January 2008, our Board of Directors authorized a new 15 million share repurchase program. Under the two share repurchase programs, UDR may repurchase shares of our common stock in open market purchases, block purchases, privately negotiated transactions or otherwise. As reflected in the table below, 100,000 shares of common stock were repurchased under these programs during the quarter ended March 31, 2009.
                                 
                    Total Number     Maximum Number  
                    of Shares     of Shares  
                    Purchased as     that May Yet  
    Total Number     Average     Part of Publicly     Be Purchased  
    of Shares     Price     Announced Plans     Under the Plans  
Period   Purchased     Per Share     or Programs     or Programs (1)  
Beginning Balance
    9,867,490     $ 22.14       9,867,490       15,132,510  
January 1, 2009 through January 31, 2009
                      15,132,510  
February 1, 2009 through February 28, 2009
                      15,132,510  
March 1, 2009 through March 31, 2009
    100,000       7.98       9,967,490       15,032,510  
 
                       
Balance as of March 31, 2009
    9,967,490     $ 22.00       9,967,490       15,032,510  
 
                       
     
(1)   This number reflects the amount of shares that were available for purchase under our 10 million share repurchase program in effect on December 31, 2007 and our 15 million share repurchase program announced on January 31, 2008.

 

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Item 3. DEFAULTS UPON SENIOR SECURITIES
None.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.

 

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Item 5. OTHER INFORMATION
There is no other information required to be disclosed in a report on Form 8-K during the quarter ended March 31, 2009, that was not previously disclosed in a Form 8-K.
Item 6. EXHIBITS
The exhibits filed or furnished with this report are set forth in the Exhibit Index.

 

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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
     
 
  UDR, Inc.
 
   
 
  (registrant)
 
   
Date: May 8, 2009
  /s/ David L. Messenger
 
   
 
  David L. Messenger
 
  Senior Vice President and Chief Financial Officer

 

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EXHIBIT INDEX
     
Exhibit No.   Description
 
   
3.1
  Amended and Restated Bylaws (as amended through April 1, 2009)(incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated and filed with the Securities and Exchange Commission on April 1, 2009, Commission File No. 1-10524).
 
   
10.1
  Seventh Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of March 13, 2009 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 18, 2009 and filed with the Securities and Exchange Commission on March 19, 2009, Commission File No. 1-10524).
 
   
10.2
  Summary of 2009 Non-Employee Director Compensation (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated and filed with the Securities and Exchange Commission on January 7, 2009, Commission File No. 1-10524).
 
   
12
  Computation of Ratio of Earnings to Fixed Charges.
 
   
31.1
  Rule 13a-14(a) Certification of the Chief Executive Officer.
 
   
31.2
  Rule 13a-14(a) Certification of the Chief Financial Officer.
 
   
32.1
  Section 1350 Certification of the Chief Executive Officer.
 
   
32.2
  Section 1350 Certification of the Chief Financial Officer.