EX-1.1
Published on May 15, 2019
AVALONBAY COMMUNITIES, INC.
Medium-Term Notes
Due Nine Months or More From Date of Issue
TERMS AGREEMENT
May 8, 2019
AvalonBay Communities, Inc.
Ballston Tower
671 N. Glebe Rd, Suite 800
Arlington, Virginia 22203
Reference is made to that certain Amended and Restated Distribution Agreement dated as of December 16, 2013 (including any exhibits and schedules thereto, the Distribution Agreement), by and among AvalonBay Communities, Inc., a Maryland corporation (the Company or AvalonBay), and the agents named therein. The entities listed on Schedule 1 hereto are collectively referred to herein as the Agents. Barclays Capital Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC have agreed to act as the representatives (the Representatives) of the Agents in connection with this Terms Agreement (this Agreement). Capitalized terms used, but not defined, in this Agreement are used in this Agreement as defined in the Distribution Agreement. For the avoidance of doubt, as used in the Distribution Agreement, (i) the term registration statement shall refer to the Companys registration statement on Form S-3ASR (File No. 333-223183) filed with the Commission on February 23, 2018, (ii) the term Prospectus Supplement shall refer to the prospectus supplement supplementing the registration statement and setting forth the terms of the offer of the Notes contemplated in the Distribution Agreement, filed with the Commission on February 23, 2018, and (iii) the term Indenture shall refer to the Indenture, dated February 23, 2018, between the Company and The Bank of New York Mellon, as trustee (the Trustee), as supplemented by the First Supplemental Indenture, dated March 26, 2018, between the Company and the Trustee, and the Second Supplemental Indenture, dated May 29, 2018, between the Company and the Trustee. This Agreement is one of the Written Terms Agreements referred to in Section 4(a) of the Distribution Agreement. The first offer of Notes (as defined below) for purposes of the term Time of Sale Prospectus under the Distribution Agreement shall be 3:32 p.m. Eastern Time on May 8, 2019.
In accordance with and subject to the terms and conditions stated in this Agreement, the Distribution Agreement and those certain Appointment Agreements dated as of the date hereof (the Appointment Agreements), by and between the Company and each of BB&T Capital Markets, a division of BB&T Securities, LLC, BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., PNC Capital Markets LLC, RBC Capital Markets, LLC, Samuel A. Ramirez & Company, Inc., Scotia Capital (USA) Inc., SunTrust Robinson Humphrey, Inc., TD Securities (USA) LLC and U.S. Bancorp Investments, Inc., which agreements are incorporated herein in their entirety and made a part hereof, the Company agrees to sell to the Agents, and each of the Agents severally agrees to purchase, as principal, from the Company the aggregate principal amounts set forth opposite its name in Schedule 1 hereto of the Companys 3.300% Notes due 2029 (the Notes), which Notes are identified on Schedule 2 hereto. If one or more of the Agents shall fail at the Settlement Date to purchase the Notes which it or they are obligated to purchase under this Agreement, the procedures set forth in Section 4(a) of the Distribution Agreement shall apply.
The obligations of the Agents to purchase Notes shall be subject, in addition to the conditions precedent listed in the Distribution Agreement, to the delivery of the following documents to the Representatives, on or before the Settlement Date:
1. the opinions and letters referred to in Sections 6(a), 6(b) and 6(c) of the Distribution Agreement, each dated the Settlement Date and otherwise in substantially the same form as was delivered in connection with the Companys March 26, 2018 public offering of medium-term notes (the Prior Offering);
2. the letters of Ernst & Young LLP referred to in Section 6(d) of the Distribution Agreement, dated the date hereof and the Settlement Date and otherwise in substantially the same forms as were delivered in connection with the Prior Offering; and
3. the officers certificate referred to in Section 6(e) of the Distribution Agreement, dated the Settlement Date and otherwise in substantially the same form as was delivered in connection with the Prior Offering.
All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Representatives of the Agents and their counsel. The Company will furnish the Agents with such conformed copies of such opinions, certificates, letters and other documents as the Agents shall reasonably request.
Further, the Company acknowledges the following:
1. In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
2. In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in the foregoing two paragraphs:
· BHC Act Affiliate has the meaning assigned to the term affiliate in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
· Covered Entity means any of the following:
(i) a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
· Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
· U.S. Special Resolution Regime means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
In addition, Schedule 3 hereto contains a list of all free writing prospectuses, as defined under Rule 405 of the Securities Act, which are included in the Time of Sale Prospectus pursuant to Section 1 of the Distribution Agreement.
Notwithstanding anything in this Agreement or the Distribution Agreement to the contrary, Merrill Lynch, Pierce, Fenner & Smith Incorporated may, without notice to or the consent of any party, assign its rights and obligations under this Agreement to BofA Securities, Inc. (or to any other wholly-owned broker-dealer subsidiary of Bank of America Corporation to which all or substantially all of Merrill Lynch, Pierce, Fenner & Smith Incorporateds investment banking or related business may be transferred).
This Agreement shall be governed by the laws of the State of New York. This Agreement, the Distribution Agreement and the Appointment Agreements constitute the entire agreement of the parties regarding the offering of Notes contemplated by this Agreement and supersede all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
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AVALONBAY COMMUNITIES, INC. | |
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By: |
/s/ Kevin P. OShea |
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Name: |
Kevin P. OShea |
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Title: |
Chief Financial Officer |
[Signature Page to Terms Agreement]
BARCLAYS CAPITAL INC.
J.P. MORGAN SECURITIES LLC
WELLS FARGO SECURITIES, LLC
For themselves and as Representatives of the Agents named on Schedule 1 hereto.
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BARCLAYS CAPITAL INC. |
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By: |
/s/ Kelly Cheng |
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Name: |
Kelly Cheng |
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Title: |
Managing Director |
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J.P. MORGAN SECURITIES LLC |
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By: |
/s/ Som Bhattacharyya |
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Name: |
Som Bhattacharyya |
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Title: |
Executive Director |
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WELLS FARGO SECURITIES, LLC |
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By: |
/s/ Carolyn Hurley |
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Name: |
Carolyn Hurley |
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Title: |
Director |
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[Signature Page to Terms Agreement]
Schedule 1
AGENTS ALLOCATIONS
2029 Notes
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Agent |
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Aggregate |
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Wells Fargo Securities, LLC |
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$ |
54,000,000 |
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Barclays Capital Inc. |
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$ |
54,000,000 |
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J.P. Morgan Securities LLC |
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$ |
54,000,000 |
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Citigroup Global Markets Inc. |
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$ |
27,900,000 |
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Deutsche Bank Securities Inc. |
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$ |
27,900,000 |
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Goldman Sachs & Co. LLC |
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$ |
27,900,000 |
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Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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$ |
27,900,000 |
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Morgan Stanley & Co. LLC |
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$ |
27,900,000 |
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BB&T Capital Markets, a division of BB&T Securities, LLC |
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$ |
22,500,000 |
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SunTrust Robinson Humphrey, Inc. |
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$ |
22,500,000 |
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TD Securities (USA) LLC |
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$ |
22,500,000 |
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BNY Mellon Capital Markets, LLC |
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$ |
13,500,000 |
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PNC Capital Markets LLC. |
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$ |
13,500,000 |
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RBC Capital Markets, LLC. |
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$ |
13,500,000 |
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Samuel A. Ramirez & Company, Inc. |
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$ |
13,500,000 |
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Scotia Capital (USA) Inc. |
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$ |
13,500,000 |
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U.S. Bancorp Investments, Inc. |
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$ |
13,500,000 |
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$ |
450,000,000 |
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Schedule 2
AVALONBAY COMMUNITIES, INC.
TERMS OF THE NOTES
(See Attached.)
Schedule 3
FREE WRITING PROSPECTUSES
INCLUDED IN TIME OF SALE PROSPECTUS
Non-Deal Roadshow Presentation, dated May 7, 2019
Roadshow Presentation, dated May 8, 2019