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
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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
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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";
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(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.]
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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