false
0000915912
0000915912
2024-05-14
2024-05-14
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
May 14, 2024
AVALONBAY
COMMUNITIES, INC.
(Exact name of registrant as specified
in its charter)
Maryland
(State or other jurisdiction of incorporation
or
organization) |
1-12672
(Commission
File Number) |
77-0404318
(I.R.S. Employer
Identification No.) |
4040 Wilson Blvd., Suite 1000
Arlington, Virginia 22203
(Address of principal executive offices)(Zip
code)
(703)
329-6300
(Registrant’s telephone number,
including area code)
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
|
Trading Symbol |
|
Name of each exchange on which
registered |
Common Stock, par value $0.01 per share |
|
AVB |
|
New York Stock Exchange |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On May 14, 2024,
AvalonBay Communities, Inc. (the “Company”) closed the public offering (the “Offering”) of an aggregate of
$400,000,000 principal amount of its 5.350% Senior Notes due 2034 (the “Notes”).
The Offering was made
pursuant to a prospectus supplement dated May 7, 2024 and a base prospectus dated February 23, 2024 relating to the Company’s
registration statement on Form S-3 (File No. 333-277313) (the “Registration Statement”). In connection with the
Offering of the Notes, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with BofA Securities, Inc.,
PNC Capital Markets LLC, RBC Capital Markets, LLC and TD Securities (USA) LLC, as representatives of the several underwriters named in
the Underwriting Agreement. A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K.
The Notes bear interest
from May 14, 2024, with interest on the Notes payable semi-annually on June 1 and December 1, beginning on December 1,
2024. The Notes will mature on June 1, 2034 unless the Company redeems them earlier.
The terms of the Notes
are governed by an Indenture between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”)
(the “Base Indenture”), dated as of February 23, 2024, as supplemented by the First Supplemental Indenture between the
Company and the Trustee, dated as of May 14, 2024 (the “First Supplemental Indenture”).
The Company estimates
that the net proceeds from the sale of the Notes, after deducting the underwriting discount and estimated offering expenses payable by
the Company, will be approximately $395.2 million.
The
Company intends to use the net proceeds from the Offering for identified and prospective land acquisitions, the development and
redevelopment of apartment communities, the acquisition of communities, funding the Company’s Structured Investment Program investments,
and working capital and general corporate purposes, which may include the repayment of outstanding indebtedness under the Company’s
commercial paper program, which allows the Company to issue, from time to time, unsecured commercial paper notes with varying maturities
of less than one year up to a maximum amount outstanding at any one time of $500,000,000, or the Company’s $2,250,000,000 revolving
variable rate unsecured credit facility. General corporate purposes may also include the repayment and refinancing of other indebtedness.
Pending the application of such net proceeds, the Company may temporarily invest all or a portion of the net proceeds from the Offering
in cash or cash equivalents and/or hold such proceeds in accordance with the Company’s internal liquidity policy.
The
foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, reference to the full text
of the Base Indenture, the First Supplemental Indenture and the form of the Notes, which are filed as Exhibits 4.1, 4.2 and 4.3 to this
Current Report on Form 8-K and are incorporated herein by reference.
In
connection with the filing of the Underwriting Agreement, the Company is also filing the opinion and consent of its counsel, Goodwin Procter
LLP, regarding the legality of the securities being registered as Exhibits 5.1 and 23.1 hereto, respectively, which are incorporated by
reference into the Registration Statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) (filed herewith) |
SIGNATURE
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 hereunto duly authorized.
|
AVALONBAY COMMUNITIES, INC. |
|
|
|
Dated: May 14, 2024 |
By: |
/s/ Kevin P. O’Shea |
|
|
Kevin P. O’Shea |
|
|
Chief Financial Officer |
Exhibit 1.1
AvalonBay Communities, Inc.
$400,000,000
5.350% Senior Notes due 2034
Underwriting Agreement
May 7, 2024
BofA Securities, Inc.
PNC Capital Markets LLC
RBC Capital Markets, LLC
TD Securities (USA) LLC
as Representatives of the
several Underwriters
c/o BofA Securities, Inc.
One Bryant Park
New York, NY 10036
c/o PNC Capital Markets LLC
300 Fifth Ave, 10th Floor
Pittsburgh, PA 15222
c/o RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, NY 10281
c/o TD Securities (USA) LLC
1 Vanderbilt Avenue, 11th Floor
New York, New York 10017
As Representatives of the several Underwriters
named in Schedule 1 hereto
Ladies and Gentlemen:
AvalonBay
Communities, Inc., a Maryland corporation (the “Company”), proposes to issue and sell to the several Underwriters
listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”),
$400,000,000 principal amount of its 5.350% Senior Notes due 2034 (the “Notes”). To the extent there are no additional
Underwriters listed on Schedule 1 hereto other than you, the term “Representatives” as used herein shall mean you, as the
Underwriters. The Notes will be issued pursuant to an Indenture dated as of February 23, 2024 (the “Base Indenture”)
between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented
by the First Supplemental Indenture to be dated as of May 14, 2024, between the Company and the Trustee (the “First Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”).
The Company hereby confirms
its agreement with the several Underwriters concerning the purchase and sale of the Notes, as follows:
1. Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an
“automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), on Form S-3
(File No. 333-277313) covering the public offering and sale of certain securities of the Company, including the Notes, under the
Securities Act, which automatic shelf registration statement became effective upon filing with the Commission pursuant to Rule 462(e) of
the Securities Act. Such registration statement and the prospectus constituting a part thereof (including in each case the information,
if any, deemed pursuant to Rule 430B under the Securities Act to be part of the registration statement at the time of effectiveness
(the “Rule 430 Information”)), is referred to herein as the “Registration Statement”; and as
used herein, the term “Preliminary Prospectus” means any prospectus relating to the Registration Statement (and any
amendments thereto) filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in
the Registration Statement at the time of its effectiveness that omits the Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities
Act) in connection with confirmation of sales of the Notes. Any reference in this agreement (this “Agreement”) to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement
or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment”
or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”), that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement
and the Prospectus.
At
or prior to 2:45 p.m., New York City time, on May 7, 2024, the time when sales of the Notes were first made (the “Time
of Sale”), the Company had prepared the following information (collectively, the “Time of Sale Prospectus”):
the Preliminary Prospectus dated May 7, 2024, and each “free-writing prospectus” (as defined pursuant to Rule 405
under the Securities Act) listed on Annex A hereto.
2. Purchase
and Sale of the Notes.
(a) The
Company agrees to issue and sell the Notes to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal amount of Notes set forth opposite such Underwriter’s name in
Schedule 1 hereto at a price equal to 99.047% of the principal amount thereof plus accrued interest from the Closing Date (as defined
below). The Company will not be obligated to deliver any of the Notes except upon payment for all the Notes to be purchased as provided
herein.
(b) The
Company understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement
as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Prospectus.
The Company acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell Notes purchased by it to or through any Underwriter.
(c) Payment
for and delivery of the Notes will be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New
York, NY 10001 at 10:00 a.m., New York City time, on May 14, 2024, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date
of such payment and delivery is referred to herein as the “Closing Date”.
(d) Payment
for the Notes shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives
against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one
or more global notes representing the Notes (collectively, the “Global Note”), with any transfer taxes payable in connection
with the sale of the Notes duly paid by the Company. The Global Note will be made available for inspection by the Representatives not
later than 1:00 p.m. New York City time, on the business day prior to the Closing Date.
(e) The
Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty
to the Company with respect to the offering of Notes contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives
nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of
the Company.
3. Representations
and Warranties of the Company. The Company represents and warrants to each Underwriter that:
(a) Effectiveness
of Registration Statement. The Registration Statement is an “automatic shelf registration statement” that has been filed
with the Commission not earlier than three years prior to the date hereof; and no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A of the Securities Act are pending before or,
to the Company’s knowledge, threatened by the Commission. No notice of objection of the Commission to the use of the Registration
Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company.
(b) Compliance
with Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness
and as of each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), complied or will comply in all
material respects with the requirements of the Securities Act and the Trust Indenture Act, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Trust Indenture Act”). Each Preliminary Prospectus and the Prospectus
and any amendment or supplement thereto, at the time each was filed with the Commission, complied and will comply in all material respects
with the requirements of the Securities Act. The representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or any post-effective amendment or the Preliminary Prospectus or the Prospectus or any amendments
or supplements thereto (i) included in the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use therein.
(c) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein
not misleading. The Time of Sale Prospectus, at the Time of Sale, did not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Prospectus, as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, will not contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or any amendment thereto or the Time of Sale Prospectus or the Prospectus
or any amendment or supplement thereto (i) included in the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) made in reliance upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(d) Issuer
Free Writing Prospectus. Other than (i) the Registration Statement, (ii) the Preliminary Prospectus, (iii) each free
writing prospectus listed on Annex A hereto, (iv) the Prospectus, (v) any electronic road show or (vi) any document not
constituting a prospectus under Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, the Company
(including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized,
approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined
in Rule 405 under the Securities Act) that would constitute an “issuer free writing prospectus” (as defined in Rule 433
under the Securities Act and referred to herein as an “Issuer Free Writing Prospectus”), unless such written communication
is approved in writing in advance by the Representatives. Each Issuer Free Writing Prospectus complies in all material respects with the
Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to
the extent required thereby) and does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus
or the Prospectus.
(e) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Prospectus,
and any amendment or supplement thereto, when they became or become effective under the Securities Act or were or are filed with the Commission,
as the case may be, conformed or will conform in all material respects to the requirements of the Exchange Act, and none of such documents
contained any untrue statement of a material fact or, taken together, omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Prospectus or the Time of Sale Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) Organization,
Power and Authority of Company. The Company has been duly organized and is validly existing as a corporation in good standing under
the laws of the State of Maryland with the power and authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and otherwise to conduct its business as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus. The Company is qualified to do business and in good standing in each jurisdiction in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary, except where any
such failure, considering all such cases in the aggregate, would not reasonably be expected to have a material adverse effect on the business,
properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken
as a whole (a “Material Adverse Effect”).
(g) Organization,
Power and Authority and Capitalization of Subsidiaries. As of the date of this Agreement, the Company does not have any “significant
subsidiaries” (as defined in Rule 12b-2 under the Exchange Act). Each of the Company’s subsidiaries is an entity duly
organized or formed, as the case may be, and, in the case of each such subsidiary that is a corporation, limited partnership or limited
liability company, is validly existing and in good standing (to the extent the concept of good standing exists in such jurisdiction) under
the laws of its respective jurisdiction of organization or incorporation, except where any such failure, considering all such cases in
the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each of the Company’s subsidiaries has full power
and authority to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and otherwise to conduct
its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except where any such failure,
considering all such cases in the aggregate, would not reasonably be expected have a Material Adverse Effect. Each of the Company’s
subsidiaries is qualified to do business in good standing (to the extent the concept of good standing exists in such jurisdiction) as
a corporation, limited partnership or limited liability company, as the case may be, in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such licensing or qualification necessary, except where any
such failure, considering all such cases in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Except
for the stock or other interests in the subsidiaries or as disclosed in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, the Company does not own, directly or indirectly, or have any direct or indirect ownership interest in any shares of stock
or any other equity interests of any corporation, association or other entity where such interest is individually material to the Company.
Except as otherwise described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, all of the outstanding shares
of capital stock or other equity interests of each subsidiary of the Company that is a corporation have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (collectively, “Liens”),
except for such ownership by others or Liens that are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
or except where such Liens would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(h) Capitalization.
The Company’s authorized capitalization is as set forth in the Time of Sale Prospectus and the Prospectus. The outstanding securities
of the Company, including the outstanding shares of common stock, $0.01 par value per share (the “Common Stock”), and
the outstanding shares of each series of preferred stock, have been duly authorized and are validly issued, fully paid and nonassessable
and are owned directly or indirectly by the Company, free and clear of Liens, except for such ownership by others or Liens that are described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, or except where such Liens would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) Financial
Statements. Except as otherwise stated therein and except, in the case of interim periods, for the notes thereto and normal year-end
adjustment, (i) the consolidated financial statements and the related notes thereto of the Company included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as applicable, that would apply to financial statements included in a filing under the Exchange
Act or Securities Act and present fairly in all material respects the consolidated financial position of the Company as of the dates indicated
and the results of operations and the changes in cash flows for the periods specified, (ii) such financial statements have been prepared
in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby
(except as otherwise noted therein), and the supporting schedules included or incorporated by reference in the Registration Statement,
the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information required to be stated therein,
and (iii) the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus has been derived from the financial statements presented therein and the accounting records of the Company and presents
fairly the information shown thereby. Any interactive data in eXtensible Business Reporting Language incorporated by reference in the
Registration Statement, the Time of Sale Prospectus or the Prospectus fairly presents in all material respects the information called
for and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects.
Ernst & Young LLP (the “Accountants”), who has delivered its audit report with respect to the Company’s
consolidated financial statements and schedules, is an independent registered public accounting firm within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities
Act.
(j) Accounting
Controls. The Company maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) that complies with the requirements of the Exchange Act. Since the end of the Company’s most recently completed
fiscal year, there has been no change in the Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting. Except as disclosed in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recently completed fiscal year, the
Company is not aware of any material weaknesses in the Company’s internal controls.
(k) Notes.
The Notes have been duly authorized by the Company for issuance and sale pursuant to this Agreement and the Indenture; and when duly authenticated
and delivered by the Trustee in accordance with the terms of the Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee), against payment of the consideration therefor, the Notes will be valid and legally binding obligations
of the Company entitled to the benefit of the Indenture and will be enforceable against the Company in accordance with their terms, subject,
as to enforcement, to (i) applicable bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights and remedies generally, (ii) general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or law), (iii) the discretion of the court before which any proceeding therefor may be brought, (iv) requirements
that a claim with respect to any Notes payable in a foreign or composite currency (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (v) governmental
authority to limit, delay or prohibit the making of payments outside the United States (collectively, the “Enforceability Limitations”);
and on the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and, upon
issuance, the terms of the Notes will conform in all material respects with the descriptions thereof contained in the Time of Sale Prospectus
and the Prospectus.
(l) Agreement
and Indenture. The Company has the corporate power and authority to enter into this Agreement, the Indenture and the Notes. This Agreement
has been duly authorized, executed and delivered by the Company. The Base Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with the terms
thereof, except to the extent that enforcement thereof may be limited by the Enforceability Limitations. The First Supplemental Indenture
has been duly authorized by the Company and, when duly executed and delivered by the Company and the Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the Company in accordance with the terms thereof, except to the extent that
enforcement thereof may be limited by the Enforceability Limitations.
(m) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the Indenture, the issuance and sale of the
Notes and the consummation of the transactions contemplated by this Agreement, the Indenture and the Notes will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination,
modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon the Current Communities
or the Development Communities (each as described in the Time of Sale Prospectus) (collectively, the “Communities”)
or any of the other assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter of the Company, as amended through the date hereof (the “Charter”), or the bylaws of the
Company, as amended through the date hereof (the “Bylaws”), the articles or certificate of incorporation or bylaws
or partnership agreement or operating agreement of any of the Company’s subsidiaries or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any court or other governmental agency or governmental body having jurisdiction
over the Company, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien,
charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or would
not materially and adversely affect the ability of the Company to perform its obligations under this Agreement, the Indenture and the
Notes.
(n) No
Material Adverse Change. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, subsequent
to the respective dates as of which information is given in the Registration Statement, Time of Sale Prospectus and the Prospectus, (i) there
has not been any material change in the capital stock (other than (v) grants pursuant to employee or director equity compensation,
benefit, stock purchase or equity incentive plans described in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
as such plans may be amended from time to time, (w) the repurchase of shares of Common Stock under the stock repurchase program described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus as such program may be amended from time to time, (x) the
issuance of shares of Common Stock upon the exercise of options or vesting of rights to purchase or acquire shares of Common Stock outstanding
as of the date hereof and described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or the issuance of shares
of Common Stock upon redemption or conversion of units of limited partnership interests, (y) shares of Common Stock to be issued
to certain employees in connection with the deferment of income and (z) the sale of shares or commitment to sell shares of Common
Stock under the Company’s fifth continuous equity program described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus) or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution declared, set aside for payment,
paid or made by the Company on any class of capital stock (other than in the ordinary course of business), or any material adverse change,
or any development involving a prospective material adverse change, in or affecting the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole, (ii) neither the Company
nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as
a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a
whole, and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order
or decree of any court or arbitrator or governmental or regulatory authority, that is material to the Company and its subsidiaries taken
as a whole.
(o) Company
Not an Investment Company. The Company is not an “investment company” or an entity “controlled” by an “investment
company” as such terms are defined in the Investment Company Act of 1940, as amended.
(p) No
Material Actions or Proceedings. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
there is no pending or, to the knowledge of the Company, threatened investigation, action, suit or proceeding against or affecting the
Company or any of its subsidiaries or any of the Communities before or by any federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding might reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect, or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; and there are no statutes or regulations or current, pending or, to the Company’s
knowledge, threatened, legal, governmental or regulatory claims, actions, suits or proceedings that would be required to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus that are not so described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(q) Filing
of Contracts. There are no contracts or other documents of a character required to be described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus or to be filed as exhibits to the Registration Statement by the Securities Act that have not
been so described or filed.
(r) Licenses
and Permits. The Company and each of its subsidiaries have all governmental licenses, permits, consents, orders, approvals and other
authorizations, and have made all declarations and filings with the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or required to carry on its business as contemplated
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, except for such licenses, permits, consents, orders, approvals,
other authorizations, declarations and filings the absence of which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and none of them has received any notice of proceedings relating to the revocation or modification
of any such governmental license, permit, consent, order, approval or other authorization or has any reason to believe that any such governmental
license, permit, consent, order, approval or other authorization will not be renewed in the ordinary course which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect,
except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(s) No
Further Consents Required. No consent, approval, authorization or order of, or filing with, any court or governmental agency or governmental
body is required for the consummation of the transactions contemplated by this Agreement and the Indenture in connection with the issuance
or sale of the Notes by the Company, except (i) such as have been obtained or may be required under the Securities Act, the Exchange
Act and the Trust Indenture Act or (ii) such consents, approvals, authorizations, orders or filings as may be required under applicable
state securities laws in connection with the purchase and distribution of the Notes by the Underwriters or the absence of which would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or prohibit or prevent the consummation
of the transactions contemplated herein.
(t) Title
to Properties. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company or its
subsidiaries, as applicable, has good and marketable title to the Communities, free and clear of all liens or encumbrances, except such
as (i) are Permitted Encumbrances or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. “Permitted Encumbrances” shall mean each of the following: (1) mechanics’, carriers’,
workers’, repairers’, materialmen’s, warehousemen’s and other similar liens and encumbrances for construction
in progress or which have otherwise arisen in the ordinary course of business; (2) liens for taxes not yet delinquent or being contested
in good faith and for which there are adequate reserves on the financial statements of the owner of the applicable property; (3) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business
that do not materially detract from the value of the affected property or materially interfere with the ordinary course business of the
Company or any of its subsidiaries; and (4) liens arising under conditional sales contracts and equipment leases with third parties
entered into in the ordinary course of business. Except as is disclosed in the Registration Statement, the Time of Sale Prospectus and
the Prospectus or except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each of the
Company and each of its subsidiaries has valid, subsisting and enforceable leases with its tenants for the properties described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus as leased by it, (ii) the Company has no knowledge of any
pending or threatened condemnation that will in any material manner affect the size of, use of, improvements of, construction on, or access
to any of the properties of the Company or its subsidiaries, and (iii) the Company has no knowledge of any pending or threatened
proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on, or access to any of
the properties of the Company or its subsidiaries. To the knowledge of the Company, the use and occupancy of each of the properties of
the Company and its subsidiaries complies with all applicable codes and zoning laws and regulations, except for such failures to comply
that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(u) Mortgages.
Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the mortgages and deeds of trust encumbering
the Communities are not convertible into equity securities and such mortgages and deeds of trust are not cross-defaulted or cross-collateralized
to any property not owned directly or indirectly by the Company, except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(v) Title
Insurance. Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect, the Company, directly or indirectly, has obtained title
insurance in favor of the mortgagee, the Company or its subsidiaries with respect to each of the Communities, in such amounts as is prudent
and customary for companies engaged in similar businesses.
(w) No
Price Stabilization or Manipulation. The Company has not taken, directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(x) No
Labor Disputes. Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, no labor dispute
with the employees of the Company or its subsidiaries exists or, to the knowledge of the Company, is threatened, except, in either case,
as would not reasonably be expected to have a Material Adverse Effect.
(y) Compliance
With Environmental Laws. Except in each case as would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect or as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company
and each of its subsidiaries: (i) are in compliance with all applicable foreign, federal, state and local laws and regulations relating
to the protection of the environment, natural resources or human health or safety, or to the manufacture, use, generation, treatment,
storage, disposal, release or threatened release of hazardous or toxic substances, pollutants, contaminants or wastes or the arrangement
for such activities (“Environmental Laws”); (ii) have received or will receive and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) have not received written notice of any actual, pending or threatened claim or potential liability under Environmental Laws
in respect of its past or present business, operations (including the disposal of hazardous substances at any off-site location) or facilities
or real property (whether owned, leased or operated) and the Company is not aware of any facts or conditions that could reasonably be
expected to give rise to any such claim or liability.
(z) Insurance.
Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries are
insured (including self-insurance) with policies covering their respective properties, operations, personnel and businesses, which insurance
(other than earthquake insurance) is in such amounts that the Company reasonably deems to be commercially reasonable; and neither the
Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage, to the extent that such coverage is then available at commercially reasonable
cost, from similar insurers or to provide self-insurance as may be necessary to continue its business. The Company maintains earthquake
insurance on the Communities to the extent described in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The
Company and its subsidiaries are in compliance with the terms of such policies and instruments, except as would not reasonably be expected
to have a Material Adverse Effect.
(aa) REIT
Status. The Company has elected to be taxed as a “real estate investment trust” (“REIT”) under the
Internal Revenue Code of 1986, as amended (the “Code”), and will use its best efforts to continue to be organized and
will continue to operate in a manner so as to qualify as a REIT under Sections 856 through 860 of the Code, unless the Board of Directors
determines that it is no longer in the best interest of the Company to continue to be so qualified.
(bb) Compliance
with ERISA. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the Company or any of its affiliates for employees
or former employees of the Company and its affiliates has been maintained in all material respects in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations, including, but not limited to, ERISA and the Code; (ii) to
the knowledge of the Company, no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any such plan, excluding transactions effected pursuant to a statutory or administrative exemption; and (iii) for
each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value
of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
(cc) Status
under the Securities Act. The Company is not an “ineligible issuer” and is a “well-known seasoned issuer”
in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act.
(dd) Title
to Personal Property. The Company and its subsidiaries have good and marketable title to, or have valid rights to lease or otherwise
use, all items of personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free
and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company and its subsidiaries, (ii) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect or (iii) are set forth in the Registration Statement, the Time
of Sale Prospectus and the Prospectus.
(ee) Title
to Intellectual Property. The Company and its subsidiaries own or possess rights to use all material trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”)
reasonably necessary for the conduct of their respective businesses as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus; to the Company’s knowledge, the conduct of the respective businesses of the Company and its subsidiaries as
described in the Registration Statement, the Time of Sale Prospectus and the Prospectus will not conflict in any material respect with
any Intellectual Property rights of others; and the Company and its subsidiaries have not received any notice of any claim of infringement
or conflict with any such rights of others, except in all cases as would not have, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(ff) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or its subsidiaries, on the one
hand, and the directors, officers or stockholders of the Company or its subsidiaries, on the other, that is required by the Securities
Act to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and that is not so described in such
documents.
(gg) Taxes.
The Company and its subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed through
the date hereof, or have requested extensions thereof (except in any case in which the failure to so file would not reasonably be expected
to have a Material Adverse Effect or except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus
and the Prospectus) and have paid all taxes indicated by such returns to the extent such taxes have become due, except for any such taxes
(i) being contested in good faith or (ii) as would not reasonably be expected to have a Material Adverse Effect or as otherwise
disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(hh) No
Unlawful Contributions. The Company and its subsidiaries have conducted their businesses in material compliance with the Foreign Corrupt
Practices Act of 1977, as amended (the “FCPA”), and neither the Company nor its subsidiaries nor, to the Company’s
knowledge, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or its subsidiaries
has (i) made any payment of funds of the Company or any subsidiary or received or retained any funds in violation of any law, rule or
regulation or of a character required to be disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus which
has not been so disclosed, (ii) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity, (iii) made any direct or indirect unlawful payment to any foreign or domestic government official
or employee from corporate funds, (iv) violated or is in violation of any provision of the FCPA and the rules and regulations
thereunder, including, without limitation, by making use of the mails or any means or instrumentality of U.S. interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political office in contravention of the FCPA, or (v) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(ii) Compliance
with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended; the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business and the rules and
regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental
agency having jurisdiction over the Company or any of its subsidiaries thereunder (collectively, the “Money Laundering Laws”).
The Company will not directly or indirectly use the proceeds from the offer or sale of the Notes hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of violating the Money
Laundering Laws.
(jj) Compliance
with OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee
or controlled affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory
that, at the time of such financing, is the subject of any OFAC sanctions.
(kk) No
Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or
other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company, except in all
cases as would not reasonably be expected to have a Material Adverse Effect or except pursuant to the terms of any indebtedness (or pursuant
to the terms of any contemplated indebtedness) of the Company or its subsidiaries set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus.
(ll) No
Broker’s Fees. Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, neither the
Company nor its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company, its subsidiaries or any Underwriter for a brokerage commission, finder’s fee or
like payment in connection with the offering and sale of the Notes.
(mm) Margin
Rules. Neither the issuance, sale and delivery of the Notes nor the application of the proceeds thereof by the Company as described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.
(nn) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
(oo) Statistical
and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(pp) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(qq) Disclosure
Controls. The Company and its subsidiaries maintain, on a consolidated basis, an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies in all material respects with the requirements
of the Exchange Act and is reasonably designed to ensure that information required to be disclosed by the Company in reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s
rules and forms, including, but not limited to, controls and procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15
of the Exchange Act.
(rr) Actively-Traded
Securities. The Common Stock is an “actively-traded security” excepted from the requirements of Rule 101 of Regulation
M under the Exchange Act by Rule 101(c)(1) thereunder.
(ss) Cybersecurity;
Data Protection. The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are reasonably believed by the
Company to be adequate for, and operate and perform in all material respects as required in connection with the operation of the business
of the Company and its subsidiaries as currently conducted and, to the Company’s knowledge, free and clear of all material bugs,
errors, defects, Trojan horses, time bombs, malware and other corruptants, other than those not reasonably expected to have a Material
Adverse Effect. To the knowledge of the Company, (i) there have been no breaches or violations of (or unauthorized access to) the
Company or its subsidiaries’ IT Systems or any personal, personally identifiable, sensitive, confidential or regulated data (“Personal
Data”) processed or stored by or on behalf of the Company or its subsidiaries, nor are there any pending internal investigations
relating to the same, (ii) the Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies,
procedures and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data (including Personal Data) and (iii) the Company and its subsidiaries are presently in compliance
in all material respects with all applicable laws, statutes and regulations and contractual obligations relating to the privacy and security
of IT Systems and Personal Data, in each case except as disclosed in the Registration Statement, the Prospectus or the Time of Sale Prospectus
or as would not reasonably be expected to have a Material Adverse Effect.
4. Further
Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and
Rule 430B under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in
Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will file promptly all reports and any
definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Notes; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company
will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act
(without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery
of Copies. The Company will deliver, without charge, upon request (i) to the Representatives, two signed copies of the Registration
Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated
by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term
“Prospectus Delivery Period” means such period of time after the first date of the public offering of the Notes as
in the opinion of counsel for the Underwriters a prospectus relating to the Notes is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in connection with sales of the Notes by any Underwriter or dealer.
(c) Amendments
or Supplements; Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will
furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement
for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice
to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, at any time on or
prior to the later of (x) the Prospectus Delivery Period and (y) the Closing Date, (i) when any amendment to the Registration
Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any
Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement
or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the
occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Prospectus or any
Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the
Time of Sale Prospectus or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt
by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending any such
qualification of the Notes and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Time
of Sale Prospectus. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of
which any of the Time of Sale Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to
the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements
to the Time of Sale Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary
so that the statements in the Time of Sale Prospectus as so amended or supplemented (including such documents to be incorporated by reference
therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Prospectus
will comply with law.
(f) Ongoing
Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which
the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser,
not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify
the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed
with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended
or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue
Sky Compliance. The Company will qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of
the Notes; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent
to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise
so subject.
(h) Earnings
Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement; it being understood and agreed that such earnings statement shall
be deemed to have been made available by the Company if such earnings statement is made available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval system.
(i) Clear
Market. During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the
Company and having a tenor of more than one year; provided that nothing in this clause (i) is intended to prevent (x) the prepayment
of any existing indebtedness of the Company or its subsidiaries or (y) the Company or its subsidiaries from entering into any revolving
credit facility or other lending arrangements.
(j) Use
of Proceeds. The Company will apply the net proceeds from the sale of the Notes as described in each of the Registration Statement,
the Time of Sale Prospectus and the Prospectus under the heading “Use of Proceeds”.
(k) No
Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Notes.
(l) Record
Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5. Certain
Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It
has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”,
as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by
the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free
writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared
pursuant to Section 3(d) or Section 4(c) above (including any electronic road show), or (iii) any free writing
prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred
to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify
the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions
of Underwriters’ Obligations. The obligation of each Underwriter to purchase Notes on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before
or, to the Company’s knowledge, threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of any Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and
on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this
Agreement shall be true and correct on and as of the Closing Date.
(c) No
Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Notes or any other debt securities or preferred stock issued or guaranteed
by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is
defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities or preferred
stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible
upgrading).
(d) No
Material Adverse Change. No event or condition of a type described in Section 3(n) [No Material Adverse Change] hereof
shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Prospectus (excluding any amendment
or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto), the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in
the manner contemplated by this Agreement, the Time of Sale Prospectus and the Prospectus.
(e) Officer’s
Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Company
who has specific knowledge of the Company’s financial matters and is satisfactory to the Representatives (i) confirming that
such officer has carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and, to the knowledge of
such officer, the representations set forth in Sections 3(a) [Effectiveness of Registration Statement], 3(b) [Compliance
with Securities Act] and 3(c) [Accurate Disclosure] hereof are true and correct, (ii) confirming that the other representations
and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth
in paragraphs (a), (c) and (d) above.
(f) Comfort
Letters. On the date of this Agreement and on the Closing Date, the Accountants shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial information contained or
incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that
the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing
Date.
(g) Opinion
and 10b-5 Statement of Counsel for the Company. Goodwin Procter LLP, counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representatives.
(h) Opinion
of Tax Counsel for the Company. Goodwin Procter LLP, tax counsel for the Company, shall have furnished to the Representatives, at
the request of the Company, their written opinion, dated the Closing Date and addressed to the Underwriters, to the effect that, subject
to the assumptions and qualifications therein commencing with the taxable year ending December 31, 1994, the form of organization
of the Company and its operations are such as to enable the Company to qualify as a “real estate investment trust” under the
applicable provisions of the Code.
(i) Opinion
and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion
and 10b--5 statement, addressed to the Underwriters, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters,
with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information
as they may reasonably request to enable them to pass upon such matters.
(j) No
Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance
or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing
Date, prevent the issuance or sale of the Notes.
(k) Good
Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the
Company in its jurisdiction of organization and in such other jurisdictions as the Representatives may reasonably request, in writing
or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) Additional
Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
All opinions, letters, certificates
and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they
are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of
Sale Prospectus, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(b) Indemnification
of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors
and its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above,
but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Prospectus, it being understood and agreed
that the only such information consists of the following paragraphs in the Preliminary Prospectus and the Prospectus: the fourth paragraph
(regarding selling concessions) and the seventh paragraph (regarding short sales and stabilizing transactions) each under the heading
“Underwriting” contained in the Prospectus.
(c) Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above,
such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought
(the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure
to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person
(who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person
and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding
and shall pay the fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be
legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel, which shall
be limited to one firm in each jurisdiction) for all Indemnified Persons, and that all such reasonable fees and expenses shall be paid
or reimbursed as they are incurred, upon receipt of a written request for payment thereof accompanied by a written statement with reasonable
supporting detail of such fees and expenses. Any such separate firm for any Underwriter, its affiliates, directors and officers and any
control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company,
its directors and officers who signed the Registration Statement and any control persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability or claims that are the subject matter of such proceeding and (y) does not include any statement as to
or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution.
If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the offering of the Notes or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Notes
and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate offering price of the Notes. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation
on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection
with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with
respect to the offering of the Notes exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion
to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness
of Agreement. This Agreement shall become effective as of the date first written above.
9. Termination.
This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and
delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited
on the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared
by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives,
is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms
and in the manner contemplated by this Agreement, the Time of Sale Prospectus and the Prospectus.
10. Defaulting
Underwriter.
(a) If,
on the Closing Date, any Underwriter defaults on its obligation to purchase the Notes that it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Notes by other persons satisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Notes, then the Company shall be entitled to a further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Underwriters to purchase such Notes on such terms. If other persons become obligated or agree to purchase
the Notes of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Time of Sale Prospectus and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Prospectus and the Prospectus
that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this
Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases
Notes that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the Notes, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder plus such Underwriter’s
pro rata share (based on the principal amount of Notes that such Underwriter agreed to purchase hereunder) of the Notes of such
defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Notes, or if the Company shall not exercise the right described in paragraph
(b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination
of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will
continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7
hereof shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default.
11. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause
to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Notes and any taxes payable in that connection; (ii) the
costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus,
any Issuer Free Writing Prospectus, any Time of Sale Prospectus and the Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants; (iv) the
fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the
Notes under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue
Sky Memorandum (including the related fees and expenses of counsel for the Underwriters relating to such registration or qualification
up to a maximum of $10,000); (v) any fees charged by rating agencies for rating the Notes; (vi) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (vii) all expenses and application
fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, Inc.,
if any, and the approval of the Notes for book-entry transfer by DTC; and (viii) all expenses incurred by the Company in connection
with any “road show” presentation to potential investors. For the avoidance of doubt, except as provided in this Section 11,
the Underwriters will pay all of their costs and expenses, including the fees of their counsel and their own travel and lodging expenses
in connection with any “road show” presentation to potential investors.
(b) If
(i) this Agreement is terminated pursuant to clause (ii) of Section 9, (ii) the Company for any reason fails to tender
the Notes for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Notes for any reason permitted under
this Agreement, the Company agrees to reimburse the Underwriters for all documented out-of-pocket costs and expenses (including the reasonable
and itemized fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby; provided that in the case of a termination pursuant to Section 10(c), the Company shall have no obligation
to reimburse the defaulting Underwriter for such costs and expenses.
12. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred
to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Notes from any Underwriter
shall be deemed to be a successor merely by reason of such purchase.
13. Survival.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained
in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Notes and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain
Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day
other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary”
shall mean any corporation, limited liability company, partnership, trust, association or other business entity of which more than 50%
of the total voting power of shares of capital stock or other equity interest entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers, general partners, trustees or similar positions thereof is at the time owned or controlled,
directly or indirectly, by the Company or one or more of the other subsidiaries of the Company (or a combination thereof).
15. Compliance
with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the
Company, which information may include the name and address of their respective clients, as well as other information that will allow
the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Authority
of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters,
and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives, c/o BofA Securities, Inc.
at 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management/Legal,
fax: (212) 901-7881, c/o PNC Capital Markets LLC, 300 Fifth Ave, 10th Floor, Pittsburgh, PA 15222, Attention: Debt Capital Markets, Fixed
Income Transaction Execution, fax: 412-762-2760, c/o RBC Capital Markets, LLC, Brookfield Place, 200 Vesey Street, 8th Floor, New York,
NY 10281, Attention: DCM Transaction Management/Scott Primrose, Telephone: (212) 618-7706, Email: Scott.Primrose@rbccm.com and c/o TD
Securities (USA) LLC, 1 Vanderbilt Avenue, 11th Floor, New York, New York 10017, Attention: DCM-Transaction Advisory, Email: USTransactionadvisory@tdsecurities.com
with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, NY
10001; Attention: David J. Goldschmidt. Notices to the Company shall be given to it at AvalonBay Communities, Inc., 4040 Wilson Blvd.,
Suite 1000, Arlington, Virginia 22203, Attention: Legal Department (fax: (703) 329-4830), with a copy (which shall not constitute
notice) to: Goodwin Procter LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018, Attention: Audrey S. Leigh, Esq.
and William T. Goldberg, Esq. (fax: (212) 253-4047).
(c) Governing
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(d) Consent
to Jurisdiction. Each of the parties hereto agrees that any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts
of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State
of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”),
and irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of
any Specified Court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set
forth above shall be effective service of process for any suit, action or proceeding brought in any Specified Court. Each of the parties
hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any such suit, action or
proceeding brought in any Specified Court has been brought in an inconvenient forum.
(e) Waiver
of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating
to this Agreement.
(f) Recognition
of the U.S. Special Resolution Regimes.
(i) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter 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.
(ii) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter 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 this Section 16(f):
“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.
(g) Counterparts.
This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the
same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S.
federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g.,
www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered
and be valid and effective for all purposes.
(h) Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
If the foregoing is in accordance
with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
|
Very truly yours, |
|
|
|
AvalonBay Communities, Inc. |
|
|
|
By: |
/s/ Kevin P. O’Shea |
|
Name: |
Kevin P. O’Shea |
|
Title: |
Chief Financial Officer |
[Signature
Page to Underwriting Agreement]
Accepted: As of the date first written
above.
BOFA SECURITIES, INC. |
|
|
|
By: |
/s/ Shawn Cepeda |
|
Name: |
Shawn Cepeda |
|
Title: |
Managing Director |
|
PNC CAPITAL MARKETS LLC |
|
|
|
By: |
/s/ Valerie Shadeck |
|
Name: |
Valerie Shadeck |
|
Title: |
Managing Director |
|
RBC CAPITAL MARKETS, LLC |
|
|
|
By: |
/s/ Scott G Primrose |
|
Name: |
Scott G Primrose |
|
Title: |
Authorized Signatory |
|
TD SECURITIES (USA) LLC |
|
|
|
By: |
/s/ Luiz Lanfredi |
|
Name: |
Luiz Lanfredi |
|
Title: |
Director |
|
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
[Signature
Page to Underwriting Agreement]
Schedule 1
Underwriter | |
Principal Amount | |
BofA Securities, Inc. | |
$ | 46,000,000 | |
PNC Capital Markets LLC | |
$ | 46,000,000 | |
RBC Capital Markets, LLC | |
$ | 46,000,000 | |
TD Securities (USA) LLC | |
$ | 46,000,000 | |
Goldman Sachs & Co. LLC | |
$ | 23,200,000 | |
J.P. Morgan Securities LLC | |
$ | 23,200,000 | |
Morgan Stanley & Co. LLC | |
$ | 23,200,000 | |
Scotia Capital (USA) Inc. | |
$ | 23,200,000 | |
Truist Securities, Inc. | |
$ | 23,200,000 | |
Wells Fargo Securities, LLC | |
$ | 23,200,000 | |
Barclays Capital Inc. | |
$ | 14,000,000 | |
BNP Paribas Securities Corp. | |
$ | 14,000,000 | |
Deutsche Bank Securities Inc. | |
$ | 14,000,000 | |
Mizuho Securities USA LLC | |
$ | 14,000,000 | |
U.S. Bancorp Investments, Inc. | |
$ | 14,000,000 | |
Samuel A. Ramirez & Company, Inc. | |
$ | 6,800,000 | |
Total | |
$ | 400,000,000 | |
Annex A
Time of Sale Prospectus
| · | Pricing Term Sheet, dated May 7, 2024, substantially in the form of Annex B. |
Annex B
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement
No. 333-277313
Relating to Preliminary Prospectus Supplement dated May 7, 2024
to Prospectus dated February 23, 2024
Pricing Term Sheet
AVALONBAY
COMMUNITIES, INC.
$400,000,000 5.350% Senior Notes due 2034
May 7, 2024
Issuer: |
AvalonBay Communities, Inc. |
Principal Amount: |
$400,000,000 |
Maturity: |
June 1, 2034 |
Coupon: |
5.350% |
Price to Public: |
99.697% of face amount |
Yield to Maturity: |
5.389% |
Spread to Benchmark Treasury: |
T + 95 basis points |
Benchmark Treasury: |
4.000% due February 15, 2034 |
Benchmark Treasury Price and Yield: |
96-17+ / 4.439% |
Interest Payment Dates: |
June 1 and December 1, commencing December 1, 2024 |
Optional Redemption: |
|
Make-whole Call: |
Make-whole call at T + 15 basis points |
Par Call: |
On or after March 1, 2034 (three months prior to the maturity date) |
Trade Date: |
May 7, 2024 |
Settlement Date: |
T + 5; May 14, 2024; under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to that trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the second business day before the Settlement Date will be required, by virtue of the fact that the Notes initially will settle on a delayed basis, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement, and should consult their own advisors with respect to these matters. |
CUSIP: |
053484 AF8 |
ISIN: |
US053484AF80 |
Ratings*: |
A3/A- (Moody’s / S&P) |
Minimum Denomination: |
$2,000 and integral multiples of $1,000 in excess thereof |
Joint Bookrunners: |
BofA Securities, Inc., PNC Capital Markets LLC, RBC Capital Markets, LLC, TD Securities (USA) LLC, Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, Scotia Capital (USA) Inc., Truist Securities, Inc. and Wells Fargo Securities, LLC |
Senior Co-Managers: |
Barclays Capital Inc., BNP Paribas Securities Corp., Deutsche Bank Securities Inc., Mizuho Securities USA LLC, U.S. Bancorp Investments, Inc. |
Co-Managers: |
Samuel A. Ramirez & Company, Inc. |
*Note: A securities rating is not a recommendation to buy, sell
or hold securities and may be revised or withdrawn at any time.
The
issuer has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the U.S. Securities and
Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and the preliminary prospectus supplement, and other documents the issuer
has filed with the SEC for more complete information about the issuer and this offering. You may obtain these documents for free by visiting
EDGAR on the SEC’s website at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request them by calling BofA Securities, Inc.
at 1-800-294-1322, PNC Capital Markets LLC at 1-855-881-0697, RBC Capital Markets, LLC at 1-866-375-6829 or TD Securities (USA) LLC at
1-855-495-9846.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE
NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT
OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER E-MAIL SYSTEM.
Exhibit 4.2
AVALONBAY COMMUNITIES, INC.
AS ISSUER
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 14, 2024
$400,000,000 5.350% SENIOR NOTES DUE 2034
SUPPLEMENT TO INDENTURE
DATED AS OF FEBRUARY 23, 2024, BETWEEN
AVALONBAY COMMUNITIES, INC. (AS ISSUER)
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(AS TRUSTEE)
FIRST
SUPPLEMENTAL INDENTURE, dated as of May 14, 2024 (this “First Supplemental Indenture”), between AvalonBay
Communities, Inc., a Maryland corporation (the “Issuer”), having its principal executive office located at 4040
Wilson Blvd., Suite 1000, Arlington, VA 22203, as issuer, and U.S. Bank Trust Company, National Association, a national banking
association organized and existing under the laws of the United States, as trustee (the “Trustee”), which supplements
that certain Indenture, dated as of February 23, 2024, by and between the Issuer and the Trustee (the “Base Indenture”).
RECITALS
WHEREAS,
the Issuer has duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of its
Securities.
WHEREAS,
Section 301 of the Base Indenture provides that the Issuer may, by means of a supplemental indenture and without the consent of
Holders, create one or more series of Securities and establish the form, terms and provisions thereof.
WHEREAS,
the Issuer intends by this First Supplemental Indenture to (i) create a series of Securities, in an initial aggregate principal
amount equal to $400,000,000 entitled 5.350% Senior Notes due 2034 (the “Notes”) and (ii) establish the form
and the terms and provisions of the Notes.
WHEREAS,
the consent of Holders to the execution and delivery of this First Supplemental Indenture is not required, and all other actions required
to be taken under the Base Indenture with respect to this First Supplemental Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND
CONDITIONS OF THE DEBT SECURITIES
Section 1.1 Definitions. Capitalized
terms used but not otherwise defined in this First Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture.
In addition, the following terms shall have the corresponding meanings with respect to this First Supplemental Indenture and the Notes
to be equally applicable to both the singular and the plural forms of the terms set forth below. To the extent that a term is defined
both herein and in the Base Indenture, the definition in this First Supplemental Indenture shall govern with respect to the Notes.
“Indenture” means the Base
Indenture as supplemented by this First Supplemental Indenture and as further amended, modified or supplemented with respect to the Notes
pursuant to the provisions of the Base Indenture.
“Par Call Date” means March 1,
2034.
“Redemption Date” means, with
respect to any Note or portion thereof to be redeemed in accordance with the provisions of Section 1.4(d) hereof, the date
fixed for such redemption in accordance with the provisions of Section 1.4(d) hereof.
“Treasury Rate” means,
with respect to any Redemption Date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the
Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board
of Governors of the Federal Reserve System), on the third business day preceding the date notice of such redemption is given based upon
the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published
by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any
successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury
constant maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury
Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant
maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity
on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining
Life—and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and
rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer
than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this
paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant
number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the date
notice of such redemption is given H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per
annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding the
date notice of such redemption is given of the United States Treasury security maturing on, or with a maturity that is closest to, the
Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more
United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the
Par Call Date and one with a maturity date following the Par Call Date, the Issuer shall select the United States Treasury security with
a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date
or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these
two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average
of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury
Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security
shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City
time, of such United States Treasury security, and rounded to three decimal places.
Section 1.2 Creation of the Notes.
In accordance with Section 301 of the Base Indenture, the Issuer hereby creates the Notes as a separate series of its senior debt
securities, entitled “5.350% Senior Notes due 2034”, issued pursuant to the Indenture. The Notes shall initially be limited
to an aggregate principal amount equal to $400,000,000, subject to the exceptions set forth in Section 301(2) of the Base Indenture
and Section 1.4(f) hereof.
Section 1.3 Form of the Notes.
The Notes will be issued in the form of one or more permanent fully registered global securities (the “Global Note”)
that will be deposited with, or on behalf of the Depository, and registered in the name of the Depository or its nominee, as the case
may be, subject to Section 305 of the Base Indenture. So long as the Depository, or its nominee, is the registered owner of the
Global Note, the Depository or its nominee, as the case may be, will be considered the sole Holder of the Notes represented by the Global
Note for all purposes under the Indenture.
Section 1.4 Terms and Provisions of the
Notes. The Notes shall be governed by all of the terms and provisions of the Base Indenture, as supplemented by this First Supplemental
Indenture, and in particular, the following provisions shall be terms of the Notes:
(a) Registration and Form. The
Notes shall be issuable in registered form without coupons in minimum denominations of $2,000 principal amount and integral
multiples of $1,000 in excess thereof. Each Note shall be dated the date of its authentication and the Notes shall be substantially
in the form of Exhibit A attached hereto.
(b) Payment of Principal and Interest.
All payments of principal, premiums, if any, and interest in respect of the Global Notes will be made by the Issuer in immediately available
funds to the Depository or its nominee, as the case may be, as the Holder of each of the Global Notes. The Notes shall mature, and the
unpaid principal thereon, shall be payable, on June 1, 2034, subject to the provisions of the Base Indenture. The rate per annum
at which interest shall be payable on the Notes shall be 5.350%. Interest on the Notes will be payable semi-annually in arrears on June 1
and December 1 of each year, commencing December 1, 2024 (each, an “Interest Payment Date”) and on the Stated
Maturity as specified in this Section 1.4(b), to the Persons in whose names the Notes are registered in the Security Register applicable
to the Notes at the close of business on the fifteenth calendar day (whether or not a Business Day) immediately preceding each Interest
Payment Date (each, a “Regular Record Date”). Interest on the Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest on the Notes shall accrue from May 14, 2024.
(c) Sinking Fund. There shall be
no sinking fund provided for the Notes.
(d) Redemption at the Option of the Issuer.
(1) Prior to the Par Call Date, the Issuer
may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage
of principal amount and rounded to three decimal places) equal to the greater of:
(x) (a) the sum of the present values
of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on
the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis
points less (b) interest accrued to the Redemption Date, and
(y) 100% of the principal amount of the
Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but
excluding, the Redemption Date.
(2) On or after the Par Call Date, the Issuer
may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount
of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(3) Notwithstanding the foregoing, if the
Redemption Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Issuer will pay the
full amount of accrued and unpaid interest, if any, due on such Interest Payment Date to the Holder of record at the close of business
on the relevant Regular Record Date (instead of the Holder surrendering its Notes for redemption).
(4) In
the case of a partial redemption, selection of the Notes for redemption will be made by lot. No Notes of a principal amount of $2,000
or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will
state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion
of the Note will be issued in the name of the Holder of the Note upon surrender for cancellation of the original Note. For so long as
the Notes are held by the Depositary (or another depositary), the redemption of the Notes shall be done in accordance with the policies
and procedures of the depositary.
(e) Payment of Notes Called for Redemption
by the Issuer.
(1) If notice of redemption has been given
at least 10 days but not more than 60 days prior to the Redemption Date to each Holder of Notes to be redeemed as otherwise provided
in Article Eleven of the Base Indenture (as amended by this First Supplemental Indenture), the Notes or portion of Notes with respect
to which such notice has been given shall become due and payable on the Redemption Date and at the place or places stated in such notice
at the Redemption Price, and unless the Issuer shall default in the payment of such Notes at the Redemption Price, so long as the Paying
Agent holds funds irrevocably deposited with it sufficient to pay the Redemption Price of the Notes to be redeemed on the Redemption
Date, then (a) such Notes will cease to be Outstanding on and after the date of the deposit, (b) interest on the Notes or portion
of Notes so called for redemption shall cease to accrue on and after the Redemption Date, and (c) the Holders of the Notes being
redeemed shall have no right in respect of such Notes except the right to receive the Redemption Price thereof. On surrender of such
Notes at the place of payment specified in such notice, the said Notes or the specified portions thereof shall be paid and redeemed by
the Issuer at the Redemption Price, together with interest accrued thereon to, but excluding, the Redemption Date.
(2) The Notes will not be convertible or
exchangeable for any other security or property.
(f) Additional Issues. The Issuer
may, without the consent of the Holders of the Notes, increase the principal amount of the Notes by issuing additional Notes in the future
on the same terms and conditions as the Notes issued on the date of this First Supplemental Indenture, except for any differences in
the issue price and interest accrued prior to the issue date of the additional Notes, and with the same CUSIP number as the Notes issued
on the date of this First Supplemental Indenture so long as such additional Notes are fungible for U.S. federal income tax purposes with
the Notes issued on the date of this First Supplemental Indenture (as determined by the Issuer). Any additional Notes would rank equally
and ratably with the Notes issued on the date of this First Supplemental Indenture and would be treated as a single class for all purposes
under the Indenture.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
Section 2.1 Ratification of Base Indenture.
This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture, and as supplemented
and modified hereby, the Base Indenture is in all respects ratified and confirmed, and the Base Indenture and this First Supplemental
Indenture shall be read, taken and construed as one and the same instrument. In the event of a conflict between the language of this
First Supplemental Indenture and the Base Indenture, the language of this First Supplemental Indenture shall control.
Section 2.2 Effect of Headings. The
Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.3 Successors and Assigns.
All covenants and agreements in this First Supplemental Indenture by the Issuer shall bind its successors and assigns, whether so expressed
or not.
Section 2.4 Separability Clause.
In case any one or more of the provisions contained in this First Supplemental Indenture shall for any reason be held to be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 2.5 Governing Law. This First
Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflicts
of law principles of such State other than New York General Obligations Law Section 5-1401.
Section 2.6 Counterparts. This First
Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute
one and the same instrument. This First Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed
and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal
Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other
relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”);
(ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or
faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence
as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect
to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate,
confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for
execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended
character of the writings.
Section 2.7 Trustee. The Trustee
shall not be responsible in any manner whatsoever for or in respect of, and neither makes any representation or warranty as to, the validity,
execution, or sufficiency of this First Supplemental Indenture or for or with respect to the recitals contained herein, all of which
recitals are made solely by the Issuer. All of the parties hereto agree that the Trustee shall be afforded all of the protections, privileges,
immunities and indemnities provided to them under the Indenture.
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed all as of the day and
year first above written.
|
AVALONBAY COMMUNITIES, INC., |
|
as Issuer |
|
|
|
|
By: |
/s/ Kevin P. O’Shea |
|
Name: |
Kevin P. O’Shea |
|
Title: |
Chief Financial Officer |
[Signature Page to
First Supplemental Indenture]
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed all as of the day and
year first above written.
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, |
|
as Trustee, Registrar, Paying Agent and
Transfer Agent |
|
|
|
|
By: |
/s/ Melody M. Scott |
|
Name: |
Melody M. Scott |
|
Title: |
AVP |
[Signature Page to First Supplemental Indenture]
EXHIBIT A
[Form of 5.350% Senior Note due 2034]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]1
1
Include only if the Note is issued in global form.
AVALONBAY COMMUNITIES, INC.
5.350% Senior Notes due 2034
CERTIFICATE No. [_____]
CUSIP No.: [_____]
ISIN No.: [_____]
AVALONBAY
COMMUNITIES, INC., a Maryland corporation (the “Issuer”, which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to [CEDE & CO.]2[______],
or registered assigns, the principal amount of [________] ($[________])[, or such lesser amount as is set forth in the Schedule of Increases
or Decreases in the Global Note on the other side of this Note]3,
on June 1, 2034 at the office or agency of the Issuer maintained for that purpose in accordance with the terms of the Indenture,
in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semi-annually on June 1 and December 1 of each year, commencing [_______] on said principal
sum at said office or agency, in like coin or currency, at the rate per annum of 5.350%, from the immediately preceding interest payment
date to which interest has been paid or duly provided for, unless no interest has been paid or duly provided for on the Notes, in which
case from May 14, 2024 until payment of said principal sum has been made or duly provided for. Unless otherwise provided in or pursuant
to the Indenture, at the option of the Issuer, interest on the Notes due and payable on any Interest Payment Date may be paid by mailing
a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by transfer to an account
maintained by the payee with a bank located in the United States of America; provided, that the Paying Agent shall have received appropriate
wire transfer instructions at least five Business Days prior to the Interest Payment Date. Any such interest which is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in whose name this Note (or one or more Predecessor Securities)
is registered as of the close of business on the fifteenth calendar day (whether or not a Business Day) immediately preceding such Interest
Payment Date.
Reference is made to the further provisions of this Note set forth
on the reverse hereof and the Indenture governing this Note. Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent
under the Indenture.
2
Include only if the Note is issued in global form.
3
Include only if the Note is issued in global form.
IN
WITNESS WHEREOF, the Issuer has caused this Note to be duly executed by one of its duly authorized officers.
Dated: |
|
|
AVALONBAY COMMUNITIES, INC. |
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION:
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, |
|
as Trustee |
|
|
Dated: |
|
|
By: |
|
|
Name: |
|
|
Title: |
|
[REVERSE OF NOTE]
AVALONBAY COMMUNITIES, INC.
5.350% Senior Notes due 2034
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.350% Senior Notes due 2034 (the “Notes”), issued under and pursuant to an Indenture dated as of
February 23, 2024 (the “Base Indenture”), between the Issuer and U.S. Bank Trust Company, National Association,
a national banking association organized and existing under the laws of the United States, as trustee (the “Trustee”),
as supplemented by the First Supplemental Indenture dated as of May 14, 2024 (the “First Supplemental Indenture,”
and together with the Base Indenture, the “Indenture”), between the Issuer and the Trustee, to which Indenture and
any indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer and the Holders of the Notes. Defined terms used but not otherwise defined in this
Note shall have the respective meanings ascribed thereto in the Indenture.
The Issuer shall have the right to redeem the Notes under certain
circumstances as set forth in Section 1.4(d) of the First Supplemental Indenture and Article Eleven of the Base Indenture.
Prior to the Par Call Date, the Issuer may redeem the Notes at its
option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount
and rounded to three decimal places) equal to the greater of:
(x) (a) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date)
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less
(b) interest accrued to the Redemption Date, and
(y) 100% of the principal amount of the Notes to be
redeemed,
plus, in either case, accrued and unpaid interest
thereon to, but excluding, the Redemption Date.
On or after the Par Call Date, the Issuer may redeem the Notes, in
whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed
plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
For the avoidance of doubt, installments of interest on the Notes
that are due and payable on an Interest Payment Date falling on or prior to a Redemption Date will be payable on such Interest Payment
Date to the Holders thereof as of the close of business on the relevant Regular Record Date (instead of the Holder surrendering such
Notes for redemption).
The Issuer’s actions and determinations in fixing the Redemption
Price shall be conclusive and binding for all purposes, absent manifest error. For the avoidance of doubt, the Trustee shall not be responsible
for determining the Redemption Price.
If an Event of Default (other than an Event of Default specified in
Section 501(5), 501(6) or 501(7) of the Base Indenture) with respect to the Notes occurs and is continuing, the principal
of, premium, if any, and accrued and unpaid interest on all Notes may be declared to be due and payable by either the Trustee or the
Holders of not less than twenty five percent (25%) in aggregate principal amount of the Notes then outstanding, and, upon said declaration
the same shall be immediately due and payable. If an Event of Default specified in Section 501(5), 501(6) or 501(7) of
the Base Indenture occurs with respect to the Notes, the principal of and premium, if any, and interest accrued and unpaid on all the
Notes shall be immediately and automatically due and payable without necessity of further action.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, to execute
supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of
any supplemental indenture with respect to the Notes or modifying in any manner the rights of the Holders of the Notes, subject to exceptions
set forth in Section 902 of the Base Indenture. Subject to the provisions of the Indenture, the Holders of not less than a majority
in aggregate principal amount of the Notes at the time outstanding may, on behalf of the Holders of all of the Notes, waive any past
default or Event of Default with respect to the Notes, subject to exceptions set forth in the Indenture.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall impair, as among the Issuer and the Holder of the Notes, the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, on and interest on this Note at the place, at the respective times, at the rate
and in the coin or currency herein and in the Indenture prescribed.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons,
in minimum denominations of $2,000 principal amount and any multiple of $1,000 in excess thereof. At the office or agency of the Issuer
referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service
charge but with payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, Notes may be transferred or may be exchanged for a like aggregate principal amount
of Notes of any other authorized denominations.
The Notes are not subject to redemption through the operation of any
sinking fund.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant
or agreement of the Issuer in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any past, present or future general partner, limited partner, member, employee, incorporator,
controlling person, stockholder, officer, director or agent, as such, of the Issuer or of any of the Issuer’s predecessors or successors,
either directly or through the Issuer, under any rule of law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the
Notes by the Holders thereof and as part of the consideration for the issue of the Notes.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint _______________________________ to transfer
this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: _______________________________________
Your Signature: |
|
|
(Sign exactly as your name
appears on the face of this Note) |
Signature Guarantee*: ___________________________________________
* |
Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL
NOTE *
The following increases or decreases in the principal amount of this
Global Note have been made:
Date of
Increase or
Decrease |
|
Amount of
decrease in
Principal Amount
at maturity of
this Global Note |
|
Amount of
increase in
Principal Amount
at maturity of
this Global Note |
|
Principal Amount
at maturity of
this Global Note
following such
decrease (or
increase) |
|
Signature of
authorized officer
of Trustee or
Custodian |
|
|
|
|
|
|
|
|
|
* |
This schedule should be included
only if the Note is issued in global form. |
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/915912/000110465924061178/tm2414397d1_ex5-1img001.jpg) |
|
Goodwin Procter llp
620 Eighth Avenue
New York, NY 10018
goodwinlaw.com
+1 212 813-8800 |
May 14, 2024
AvalonBay Communities, Inc.
4040 Wilson Blvd., Suite 1000
Arlington, Virginia 22203
Re: Securities
Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection
with your filing of a Registration Statement on Form S-3 (File No. 333-277313) (as amended or supplemented, the “Registration
Statement”) filed on February 23, 2024 with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offer of,
among other securities, debt securities (the “Debt Securities”) of AvalonBay Communities, Inc., a Maryland corporation
(the “Company”). The Registration Statement became effective upon filing with the Commission on February 23, 2024.
Reference is made to our opinion letter dated
February 23, 2024 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter
in connection with the prospectus supplement (the “Prospectus Supplement”) filed on May 8, 2024 by the Company
with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Company
of $400,000,000 aggregate principal amount of Debt Securities in the form of 5.350% Senior Notes due 2034 (the “Notes”).
The Notes are being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters
(the “Underwriting Agreement”).
We have reviewed such documents and made such
examination of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification,
on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of
the Company.
We
refer to the Indenture, dated as of February 23, 2024 (the “Base Indenture”), between the Company and U.S.
Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture,
dated as of the date hereof (the “Supplemental Indenture”), between the Company and the Trustee, collectively, as the
“Indenture.” We refer to the Indenture and the Notes as the “Subject Documents.”
AvalonBay Communities, Inc.
May 14, 2024
Page 2
In our examination of the Subject Documents and
other documents relevant to the opinion set forth below, we have assumed, without independent verification, (i) the genuineness of
all signatures, (ii) the legal capacity of all natural persons, (iii) the authenticity and completeness of all Subject Documents
submitted to us as originals, (iv) the conformity to originals of any Subject Documents submitted to us as copies or by facsimile
or other means of electronic transmission and (v) the truth, accuracy and completeness of information, representations and warranties
contained in the Subject Documents. We have also assumed the validity and constitutionality of each relevant statute, rule, regulation
and action by governmental agencies covered by this opinion letter, unless a reported decision of a court in the relevant jurisdiction
has held otherwise.
The opinion set forth below is limited to the
Maryland General Corporation Law and the law of New York.
Based on the foregoing, and subject to the additional
qualifications set forth below, we are of the opinion that: upon the due execution and delivery of the Supplemental Indenture by each
of the parties and the execution, authentication and issuance of the Notes against payment pursuant to the Underwriting Agreement and
in accordance with the terms of the Indenture, the Notes will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
The opinion set forth above is subject to the
following additional qualifications:
(i) Our opinion set
forth above is subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application
affecting the rights and remedies of creditors and to general principles of equity.
(ii) We express no opinion
with respect to any provision of any of the Subject Documents relating to: (a) non-reliance, exculpation, disclaimer, limitation
of liability, indemnification, contribution, waiver, limitation or exclusion of remedies; (b) liquidated damages, forfeitures, default
interest, late charges, make-whole premiums, payment of attorneys' fees, collection upon acceleration of amounts that might be determined
to constitute unearned interest thereon, or other economic remedies, in each case to the extent it constitutes a penalty or is prohibited
by law; (c) concepts of materiality, reasonableness, good faith, fair dealing or unconscionability; (d) governing law (except
for the enforceability of any provision choosing New York law as a Subject Document’s governing law pursuant to the statutes referred
to in paragraph (iii) below); (e) the waiver of the right to trial by jury or of usury, stay, extension and similar laws; (f) rights
or remedies not being exclusive, not preventing the concurrent assertion of any other right or remedy, being cumulative and exercisable
in addition to any other right and remedy, or any delay or omission to exercise any right or remedy not impairing any right or remedy
or not constituting a waiver thereof; (g) any obligation or agreement to use best efforts, reasonable best efforts or commercially
reasonable efforts; (h) any requirement that a party take further action or enter into further agreements or instruments or provide
further assurances; (i) any requirement that amendments or waivers be in writing insofar as they suggest that oral or other modifications,
amendments or waivers could not be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not apply;
(j) service of process by any method not provided for under applicable statute or court rule; and (k) the severability of any
provisions to the foregoing effect to the extent such provisions are unenforceable.
AvalonBay Communities, Inc.
May 14, 2024
Page 3
(iii) To the extent
that any opinion above relates to the enforceability of the choice of New York law, selection of a New York forum or exclusive jurisdiction
provisions in any of the Subject Documents, that opinion is given solely in reliance on N.Y. Gen. Oblig. Law §§ 5-1401,
5-1402 (McKinney 2010) and N.Y. CPLR 327(b) (McKinney 2010) and is subject to the qualifications that enforceability may be
limited by public policy or other considerations of any jurisdiction, other than the State of New York, in which enforcement of such provisions,
or of a judgment upon an agreement containing such provisions, is sought and by constitutional limitations. With respect to waiving any
objection to venue, our opinion is qualified in its entirety by N.Y. CPLR 510 (McKinney 2010). We call to your attention that courts of
the State of New York, or federal courts of the United States of America located in New York, could decline to hear a case on grounds
of forum non conveniens or similar doctrines limiting the availability of such courts as a forum for the resolution of disputes,
irrespective of any agreement between the parties concerning jurisdiction. We express no opinion as to (i) any waiver of objections
based on inconvenient forum or (ii) venue or the subject matter jurisdiction of the federal courts of the United States.
This opinion letter and the opinion it contains
shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion
as Exhibit 5.1 to the Company’s Current Report on Form 8-K, dated May 14, 2024, which is incorporated by reference
into the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement.
In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations thereunder.
v3.24.1.1.u2
Cover
|
May 14, 2024 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
May 14, 2024
|
Entity File Number |
1-12672
|
Entity Registrant Name |
AVALONBAY
COMMUNITIES, INC.
|
Entity Central Index Key |
0000915912
|
Entity Tax Identification Number |
77-0404318
|
Entity Incorporation, State or Country Code |
MD
|
Entity Address, Address Line One |
4040 Wilson Blvd., Suite 1000
|
Entity Address, City or Town |
Arlington
|
Entity Address, State or Province |
VA
|
Entity Address, Postal Zip Code |
22203
|
City Area Code |
703
|
Local Phone Number |
329-6300
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Title of 12(b) Security |
Common Stock, par value $0.01 per share
|
Trading Symbol |
AVB
|
Security Exchange Name |
NYSE
|
Entity Emerging Growth Company |
false
|
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
Avalonbay Communities (NYSE:AVB)
Historical Stock Chart
From Jul 2024 to Aug 2024
Avalonbay Communities (NYSE:AVB)
Historical Stock Chart
From Aug 2023 to Aug 2024