-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CNWn8AGuieOjjVUzYj+Azl0XsypN8PrMDcnwEOuN32jY5v88iFnEmlsZA6lhZhw9 5jZVlpL3eNDBvC4vUSJqnQ== 0000912057-01-531331.txt : 20010906 0000912057-01-531331.hdr.sgml : 20010906 ACCESSION NUMBER: 0000912057-01-531331 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20010831 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20010905 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AVALONBAY COMMUNITIES INC CENTRAL INDEX KEY: 0000915912 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 770404318 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12672 FILM NUMBER: 1731141 BUSINESS ADDRESS: STREET 1: 2900 EISENHOWER AVENUE STREET 2: SUITE 300 CITY: ALEXANDRIA STATE: VA ZIP: 22314 BUSINESS PHONE: 7033296300 MAIL ADDRESS: STREET 1: 2900 EISENHOWER AVENUE STREET 2: STE 300 CITY: ALEXANDRIA STATE: VA ZIP: 22314 FORMER COMPANY: FORMER CONFORMED NAME: AVALON BAY COMMUNITIES INC DATE OF NAME CHANGE: 19980618 FORMER COMPANY: FORMER CONFORMED NAME: BAY APARTMENT COMMUNITIES INC DATE OF NAME CHANGE: 19931208 8-K 1 a2058620z8-k.txt 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 ---------------------------------- Date of Report (Date of earliest event reported): August 31, 2001 AVALONBAY COMMUNITIES, INC. (Exact name of registrant as specified in charter) MARYLAND 1-12672 77-0404318 (State or other jurisdiction (Commission file number) (IRS employer of incorporation) identification no.) 2900 EISENHOWER AVENUE, SUITE 300, ALEXANDRIA, VIRGINIA 22314 ------------------------------------------------------------- (Address of principal executive offices) (Zip Code) (703) 329-6300 ---------------------------------------------------- (Registrant's telephone number, including area code) Item 5. Other Events. On September 5, 2001, AvalonBay Communities, Inc. (the "Company") filed a prospectus supplement to the prospectus contained in its Registration Statement on Form S-3 (File No. 333-57888), which was declared effective by the Securities and Exchange Commission on April 11, 2001, relating to the offering from time to time of medium-term notes in an aggregate principal amount of up to $750,000,000. This amount may be reduced by the sale from time to time of other securities described in the prospectus, including common stock and preferred stock. In connection with the filing of the prospectus supplement, the Company amended the Distribution Agreement, dated December 21, 1998, by and among the Company and the Agents identified therein, as previously amended on June 27, 2000, to effect a change in the Agents involved in the distribution of the medium-term notes. The Second Amendment to the Distribution Agreement, dated as of August 31, 2001, is filed herewith as Exhibit 1.3. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (c) Exhibits 1.1 Distribution Agreement, dated December 21, 1998, by and among the Company and the Agents named therein, including Administrative Procedures, relating to the MTNs. (Incorporated by reference to Exhibit 4.4 to the Company's Current Report on Form 8-K filed on December 21, 1998.) 1.2 First Amendment to the Distribution Agreement, dated as of June 27, 2000, by and among the Company and the Agents named therein. (Incorporated by reference to Exhibit 1.2 to the Company's Current Report on Form 8-K filed on July 11, 2000.) 1.3 Second Amendment to the Distribution Agreement, dated as of August 31, 2001, by and among the Company and the Agents named therein. (Filed herewith.) SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be filed on its behalf by the undersigned hereunto duly authorized. AVALONBAY COMMUNITIES, INC. By: /s/ Thomas J. Sargeant ------------------------------------- Dated: September 4, 2001 Name: Thomas J. Sargeant Title: Executive Vice President and Chief Financial Officer Exhibit Index 1.1 Distribution Agreement, dated December 21, 1998, by and among the Company and the Agents named therein, including Administrative Procedures, relating to the MTNs. (Incorporated by reference to Exhibit 4.4 to the Company's Current Report on Form 8-K filed on December 21, 1998.) 1.2 First Amendment to the Distribution Agreement, dated as of June 27, 2000, by and among the Company and the Agents named therein. (Incorporated by reference to Exhibit 1.2 to the Company's Current Report on Form 8-K filed on July 11, 2000.) 1.3 Second Amendment to the Distribution Agreement, dated as of August 31, 2001, by and among the Company and the Agents named therein. (Filed herewith.) EX-1.3 3 a2058620zex-1_3.txt EXHIBIT 1.3 Exhibit 1.3 AVALONBAY COMMUNITIES, INC. MEDIUM-TERM NOTES DUE NINE MONTHS OR MORE FROM DATE OF ISSUE SECOND AMENDMENT TO DISTRIBUTION AGREEMENT August 31, 2001 THIS SECOND AMENDMENT (this "Second Amendment") is made and entered into as of August 31, 2001 (the "Effective Date") by and among AvalonBay Communities, Inc., a Maryland corporation (the "Company"), Lehman Brothers Inc., Banc of America Securities LLC (formerly known as NationsBanc Montgomery Securities LLC), First Union Securities, Inc. (formerly known as First Union Capital Markets) and J.P. Morgan Securities Inc. (collectively, the "Original Agents"), Fleet Securities, Inc. and PNC Capital Markets, Inc. (collectively, the "Supplemental Agents" and, together with the Original Agents, the "Existing Agents"), and Salomon Smith Barney Inc. (the "New Agent"). Each of the Company, the Existing Agents and the New Agent is referred to as a "Party" and collectively as the "Parties." THE PARTIES ENTER THIS SECOND AMENDMENT on the basis of the following facts, understandings and intentions: A. The Company, the Original Agents (excluding Lehman Brothers Inc. with respect to the Original Agreement (as defined below)), PaineWebber Incorporated and UBS Warburg LLC (formerly known as Warburg Dillon Read LLC) are parties to that certain Distribution Agreement dated as of December 21, 1998 (the "Original Agreement"), as amended by that certain First Amendment to Distribution Agreement, dated as of June 27, 2000 (the "First Amendment," and together with the Original Agreement, the "Distribution Agreement"), which relate to a medium-term notes program for the Company. (Capitalized terms used in this Second Amendment without definition are used as defined in the Distribution Agreement.) B. The Company and the Supplemental Agents are parties to Supplement No. 1 to Distribution Agreement, dated as of January 26, 1999, pursuant to which the Supplemental Agents each became a party to, and Agents under, the Distribution Agreement. C. Prior to the Effective Date, the Company has given notice to each of UBS Warburg LLC and PaineWebber Incorporated that the Company has terminated the Distribution Agreement with respect to each of them, respectively (and by the execution of this Second Amendment, the Company hereby gives notice of such terminations to the Existing Agents), pursuant to Section 13 of the Distribution Agreement. D. The Parties desire to amend the Distribution Agreement to add the New Agent as an Agent under the Distribution Agreement NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements contained in this Second Amendment, the Parties agree as follows: 1. ADDITION OF NEW AGENT. The definition of "Agent" in the first paragraph of the Distribution Agreement is hereby amended as follows in order to admit the New Agent as an Agent under the Distribution Agreement. From and after the Effective Date, and reflecting the written termination notices by the Company referred to in Recital C above, the defined term "Agents" shall refer to Lehman 1 Brothers Inc., Banc of America Securities LLC, First Union Securities, Inc., Fleet Securities, Inc., J.P. Morgan Securities Inc., PNC Capital Markets, Inc. and Salomon Smith Barney Inc. 2. NOTICE ADDRESSES. The notice provision of Section 14(b) of the Distribution Agreement is amended by: (A) deleting therefrom the name and address of J.P. Morgan Securities Inc. and inserting the following in lieu thereof: "J.P. Morgan Securities Inc. 270 Park Avenue, 9th Floor New York, New York 10017 Attention: Transaction Execution Group Telephone: (212) 834-5710 Facsimile: (212) 834-6702"; (B) adding the following immediately following the address for Lehman Brothers Inc.: " and Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 Attention: Medium-Term Note Desk Telephone: (212) 526-8400 Facsimile: (212) 526-1682 with a copy to: O'Melveny & Myers LLP 275 Battery Street, Suite 2600 San Francisco, CA 94111-3305 Attention: Peter T. Healy, Esq. Telephone: (415) 984-8833 Facsimile: (415) 984-8701"; (C) adding the following immediately prior to the final paragraph of such section: "Fleet Securities, Inc. 100 Federal Street, MADE 10012H Boston, MA 02110 Attention: John Crees Telephone: (617) 434-5983 Telecopy: (617) 434-8702 PNC Capital Markets, Inc. 249 Fifth Avenue, 26th Floor Pittsburgh, PA 15222-2707 Attention: Manager - Syndicate Desk Telephone: (412) 762-4256 Telecopy: (412) 762-3443 2 Salomon Smith Barney Inc. Medium-Term Note Department 388 Greenwich Street New York, NY 10013 Telephone: (212) 816-5831 Telecopy: (212) 816-0949"; and (D) deleting therefrom the name and address of each of PaineWebber Incorporated and Warburg Dillon Read LLC. 3. ADDRESSES FOR ADMINISTRATIVE PROCEDURES. Within the Administrative Procedures Exhibit B to the Distribution Agreement, the Sections of Parts I and II titled "Procedure for Rate Changes" and the Sections of Parts I, II and III titled "Delivery of Prospectus" are hereby amended by: (A) deleting therefrom the name and address of J.P. Morgan Securities Inc. and inserting the following in lieu thereof: "if to: J.P. Morgan Securities Inc. to: 270 Park Avenue, 8th Floor New York, New York 10017 Attention: Medium-Term Note Desk Telephone: (212) 834-4421 Facsimile: (212) 834-6081"; (B) deleting therefrom the name and address of Lehman Brothers Inc. and inserting the following in lieu thereof: "if to: Lehman Brothers Inc. to both: 3 World Financial Center New York, New York 10285 Attention: Medium Term Note Desk Telephone: (212) 526-8400 Facsimile: (212) 526-1682 and ADP Prospectus Services For Lehman Brothers Inc. 55 Mercedes Way Edgewood, NY 11717 Attention: Client Services Desk Facsimile: (631) 254-7268"; 3 (C) adding the following immediately following the address of Lehman Brothers Inc.: "if to: Fleet Securities, Inc. to: 100 Federal Street, MADE 10012H Boston, MA 02110 Attention: John Crees Telephone: (617) 434-5983 Telecopy: (617) 434-8702 if to: PNC Capital Markets, Inc. to: 249 Fifth Avenue, 26th Floor Pittsburgh, PA 15222-2707 Attention: Manager - Syndicate Desk Telephone: (412) 762-4256 Telecopy: (412) 762-3443 if to: Salomon Smith Barney Inc. to: Brooklyn Army Terminal 140 58th Street, 8th Floor Brooklyn, NY 11220 Attention: Annabelle Avila Telephone: (718) 765-6725 Telecopy: (718) 765-6734 Or such other address as each such Agent may from time to time provide to the Company"; and (D) deleting therefrom the name and address of each of PaineWebber Incorporated and Warburg Dillon Read LLC. 4. COUNTERPARTS. This Second Amendment may be executed in one or more counterparts, signature pages may be detached from such separately executed counterparts and reattached to other counterparts and, in each such case, the executed counterparts hereof shall constitute a single instrument. Signature pages may be delivered by telecopy. 5. CONFIRMATION. Except as amended by this Second Amendment, the Distribution Agreement is hereby ratified and confirmed in all respects. [Signature pages follow.] 4 If the foregoing correctly sets forth the understanding between the Company, the Existing Agents and the New Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company, the Existing Agents and the New Agent. AVALONBAY COMMUNITIES, INC. By: /s/ Thomas J. Sargeant -------------------------- Thomas J. Sargeant Chief Financial Officer "New Agent" SALOMON SMITH BARNEY INC. By: /s/ Suni Harford ------------------------------------------------- Name: Suni Harford Title: Managing Director "Existing Agents" LEHMAN BROTHERS INC. By: /s/ Frederick T. Caven, Jr. ------------------------------------------------- Name: Frederick T. Caven, Jr. Title: Managing Director FIRST UNION SECURITIES, INC. By: /s/ Keith Mauney ------------------------------------------------- Name: Keith Mauney Title: Managing Director J.P. MORGAN SECURITIES INC. By: /s/ Huw L. Richards ------------------------------------------------- Name: Huw L. Richards Title: Vice-President BANC OF AMERICA SECURITIES LLC By: /s/ Sammy Hicks ------------------------------------------------- Name: Sammy Hicks Title: Associate FLEET SECURITIES, INC. By: /s/ Paul E. McCormack ------------------------------------------------- Name: Paul E. McCormack Title: Managing Director PNC CAPITAL MARKETS, INC. By: /s/ Robert W. Thomas ------------------------------------------------- Name: Robert W. Thomas Title: Managing Director -----END PRIVACY-ENHANCED MESSAGE-----