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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):
December 7, 2023
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, 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 December 7, 2023,
AvalonBay Communities, Inc. (the “Company”) closed the public offering (the “Offering”) of an aggregate of
$400,000,000 principal amount of its 5.300% Senior Notes due 2033 (the “Notes”).
The Offering was made
pursuant to a prospectus supplement dated December 4, 2023 and a base prospectus dated February 25, 2021 relating to the Company’s
registration statement on Form S-3 (File No. 333-253532) (the “Registration Statement”). In connection with the
Offering of the Notes, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Barclays Capital
Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and U.S. Bancorp Investments, Inc., 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 December 7, 2023, with interest on the Notes payable semi-annually on June 7 and December 7, beginning on June 7,
2024. The Notes will mature on December 7, 2033 unless the Company redeems them earlier.
The terms of the Notes
are governed by an Indenture between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) (the “2018
Indenture”), dated as of February 23, 2018, as amended by the First Supplemental Indenture between the Company and the Trustee,
dated as of March 26, 2018 (the “First Supplemental Indenture”) and the Second Supplemental Indenture between the Company
and the Trustee, dated as of May 29, 2018 (the “Second Supplemental Indenture,” and together with the 2018 Indenture
and the First Supplemental Indenture, the “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 $396.2 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 2018 Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the form of the Notes, which are filed
as Exhibits 4.1, 4.2, 4.3 and 4.4 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: December 7, 2023 |
By: |
/s/ Kevin P. O’Shea |
| |
|
Kevin P. O’Shea |
| |
|
Chief Financial Officer |
Exhibit 1.1
AvalonBay Communities, Inc.
$400,000,000
5.300% Senior Notes due 2033
Underwriting Agreement
December 4, 2023
Barclays Capital Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
U.S. Bancorp Investments, Inc.
as
Representatives of the several Underwriters
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, NY 10019
c/o Deutsche Bank Securities Inc.
1 Columbus Circle, 9th Floor
New York, NY 10019
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
c/o U.S. Bancorp Investments, Inc.
214 N. Tryon Street, 26th Floor
Charlotte, NC 28202
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 5.300% Senior Notes due 2033 (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, 2018 (the “2018 Indenture”)
between the Company and The Bank of New York Mellon, as trustee (the “Trustee”), as amended by the First Supplemental
Indenture dated as of March 26, 2018 between the Company and the Trustee (the “First Supplemental Indenture”)
and the Second Supplemental Indenture dated as of May 29, 2018 between the Company and the Trustee (the “Second Supplemental
Indenture” and, collectively with the 2018 Indenture and the First Supplemental 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. 333-253532) 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 4:30 p.m., New York City time, on December 4, 2023, 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 December 4, 2023, 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 99.289% 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 December 7, 2023, 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 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.
(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 General Disclosure
Package 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 10b5 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 (Conflicts)” 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 Barclays
Capital Inc., 745 Seventh Avenue, New York, NY 10019, Attention: Syndicate Registration (fax: (646) 834-8133), c/o Deutsche Bank Securities
Inc., 1 Columbus Circle, New York, NY 10019, Attention: Debt Capital Markets Syndicate Desk with a copy to: c/o Deutsche Bank Securities
Inc., 1 Columbus Circle, New York, NY 10019, Attention: General Counsel, 19th Floor (fax: (646) 374-1071), c/o J.P. Morgan Securities
LLC, 383 Madison Avenue, New York, NY 10179, Attention: Investment Grade Syndicate Desk (fax: (212) 834-6081), and c/o U.S. Bancorp Investments, Inc.,
214 N. Tryon Street, 26th Floor, Charlotte, North Carolina 28202, Attention: Debt Capital Markets (fax: (704) 335-2393) 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, |
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AvalonBay Communities, Inc. |
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|
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By: |
/s/ Kevin P. O’Shea |
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Title: |
Chief Financial Officer |
[Signature Page to Underwriting Agreement]
Accepted: As of the date first written
above.
| BARCLAYS CAPITAL INC. |
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| |
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| By: |
/s/ Meghan Maher |
|
| Name: |
Meghan Maher |
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| Title: |
Managing Director |
|
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| DEUTSCHE BANK SECURITIES INC. |
|
| |
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| By: |
/s/ Kevin Prior |
|
| Name: |
Kevin Prior |
|
| Title: |
Director |
|
| |
|
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| By: |
/s/ Ritu Ketkar |
|
| Name: |
Ritu Ketkar |
|
| Title: |
Managing Director |
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| J.P. MORGAN SECURITIES LLC |
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| |
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| By: |
/s/ Som Bhattacharyya |
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| Name: |
Som Bhattacharyya |
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| Title: |
Executive Director |
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| U.S. BANCORP INVESTMENTS, INC. |
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| By: |
/s/ Charles P. Carpenter |
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| Name: |
Charles P. Carpenter |
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| Title: |
Senior Vice President |
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For themselves and on behalf of the several
Underwriters listed in
Schedule 1 hereto.
[Signature Page to Underwriting Agreement]
Schedule 1
| Underwriter | |
Principal Amount | |
| Barclays Capital Inc. | |
$ | 52,000,000 | |
| Deutsche Bank Securities Inc. | |
$ | 46,000,000 | |
| J.P. Morgan Securities LLC | |
$ | 46,000,000 | |
| U.S. Bancorp Investments, Inc. | |
$ | 46,000,000 | |
| BofA Securities, Inc. | |
$ | 22,000,000 | |
| BNP Paribas Securities Corp. | |
$ | 22,000,000 | |
| Mizuho Securities USA LLC | |
$ | 22,000,000 | |
| Morgan Stanley & Co. LLC | |
$ | 22,000,000 | |
| RBC Capital Markets, LLC | |
$ | 22,000,000 | |
| Goldman Sachs & Co. LLC | |
$ | 14,000,000 | |
| PNC Capital Markets LLC | |
$ | 14,000,000 | |
| Scotia Capital (USA) Inc. | |
$ | 14,000,000 | |
| Truist Securities, Inc. | |
$ | 14,000,000 | |
| TD Securities (USA) LLC | |
$ | 14,000,000 | |
| Wells Fargo Securities, LLC | |
$ | 14,000,000 | |
| R. Seelaus & Co., LLC | |
$ | 8,000,000 | |
| Samuel A. Ramirez & Company, Inc. (Associated Bank) | |
$ | 8,000,000 | |
| Total | |
$ | 400,000,000 | |
Annex A
Time of Sale Prospectus
| · | Pricing Term Sheet, dated December 4, 2023, substantially in the form of Annex B. |
Annex B
Issuer
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement
No. 333-253532
Relating to Preliminary Prospectus Supplement dated December 4, 2023
to Prospectus dated February 25, 2021
Pricing Term Sheet
AVALONBAY
COMMUNITIES, INC.
$400,000,000 5.300% Senior Notes due 2033
December 4, 2023
| Issuer: |
AvalonBay Communities, Inc. |
| Principal Amount: |
$400,000,000 |
| Maturity: |
December 7, 2033 |
| Coupon: |
5.300% |
| Price to Public: |
99.939% of face amount |
| Yield to Maturity: |
5.308% |
| Spread to Benchmark Treasury: |
T + 102 basis points |
| Benchmark Treasury: |
4.500% due November 15, 2033 |
| Benchmark Treasury Price and Yield: |
101-22+ / 4.288% |
| Interest Payment Dates: |
June 7 and December 7, commencing June 7, 2024 |
| Optional Redemption: |
|
| Make-whole call: |
Make-whole call at T + 20 basis points |
| Par Call: |
On or after September 7, 2033 (three months prior to the maturity date) |
| Trade Date: |
December 4, 2023 |
| Settlement Date: |
T+3; December 7, 2023; 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 AE1 |
| ISIN: |
US053484AE16 |
| Ratings*: |
A3/A- (Moody’s / S&P) |
| Minimum denomination: |
$2,000 and integral multiples of $1,000 in excess thereof |
| Joint Bookrunners: |
Barclays Capital Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc., BofA Securities, Inc., BNP Paribas Securities Corp., Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, and RBC Capital Markets, LLC |
| Senior Co-Managers: |
Goldman Sachs & Co. LLC, PNC Capital Markets LLC, Scotia Capital (USA) Inc., TD Securities (USA) LLC, Truist Securities, Inc., and Wells Fargo Securities, LLC |
| Co-Managers: |
R. Seelaus & Co., LLC and 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 Barclays Capital
Inc. at 1-888-603-5847, Deutsche Bank Securities Inc. at 1-800-503-4611, J.P. Morgan Securities LLC at 1-866-803-9204, or U.S. Bancorp
Investments, Inc. at 1-877-558-2607.
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 4.4
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.
CERTIFICATE
No. 1 |
CUSIP No.:
053484 AE1 |
PRINCIPAL AMOUNT:
$400,000,000 |
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ISIN: |
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US053484AE16 |
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AVALONBAY COMMUNITIES, INC. |
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5.300%
Senior Notes due 2033 |
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ORIGINAL ISSUE DATE:
December 7, 2023 |
INTEREST RATE: 5.300%
DEFAULT RATE: N/A |
STATED MATURITY DATE: December 7, 2033 |
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| INTEREST PAYMENT DATE(S)*: |
¨ CHECK
IF DISCOUNT NOTE |
FIRST INTEREST PAYMENT
DATE: |
| x June 7 and December 7 |
Issue Price: 99.939% |
June 7, 2024 |
| ¨ Other:
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| * See additional
provisions herein |
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| INITIAL REDEMPTION DATE: |
INITIAL REDEMPTION PERCENTAGE: |
ANNUAL REDEMPTION PERCENTAGE |
| At any time prior to Stated Maturity Date |
See Other/Additional Provisions |
REDUCTION: |
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N/A |
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| OPTIONAL REPAYMENT DATE(S): |
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| N/A |
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| SPECIFIED CURRENCY: |
AUTHORIZED DENOMINATION: |
EXCHANGE RATE AGENT: |
x United
States dollars
¨ Other: |
x $2,000
and integral
multiples of $1,000 in excess thereof |
N/A |
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¨ Other: |
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| ADDENDUM ATTACHED |
OTHER/ADDITIONAL PROVISIONS: |
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x Yes
¨ No |
See the addendum, referred to as Annex A, attached
to this Note |
|
AVALONBAY
COMMUNITIES, INC., a Maryland corporation (the “Company”, which term includes any successor corporation under
the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the
Principal Amount of FOUR HUNDRED MILLION DOLLARS ($400,000,000), on the Stated Maturity Date specified above (or any Redemption Date
or Repayment Date, each as defined on the reverse hereof or in an addendum hereto, or any earlier date of acceleration of maturity) (each
such date being hereinafter referred to as the “Maturity Date” with respect to the principal repayable on such date) and
to pay interest thereon (and on any overdue principal, premium and/or interest to the extent legally enforceable) at the Interest Rate
per annum specified above, until the principal hereof is paid or duly made available for payment. The Company will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an “Interest Payment Date”), commencing on June 7, 2024.
Interest on this Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will
accrue from, and including, the immediately preceding Interest Payment Date to which interest has been paid or duly provided for (or
from, and including, the Original Issue Date if no interest has been paid or duly provided for) to, but excluding, the applicable Interest
Payment Date or the Maturity Date, as the case may be (each, an “Interest Period”). The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes, as defined on the reverse hereof) is registered at the close of business on the
fifteenth calendar day (whether or not a Business Day, as defined below) immediately preceding such Interest Payment Date (the “Record
Date”); provided, however, that interest payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so punctually paid or duly provided for on any Interest Payment
Date other than the Maturity Date (“Defaulted Interest”) shall forthwith cease to be payable to the person in whose name
this Note is registered (the “Holder”) on the close of business on any Record Date and, instead, shall be paid to the Holder
at the close of business on a special record date (the “Special Record Date”) for the payment of such Defaulted Interest
to be fixed by the Trustee hereinafter referred to, notice whereof shall be given to the Holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any time in any other lawful manner, all as more fully provided
for in the Indenture.
Payment of principal, premium,
if any, and interest in respect of this Note due on the Maturity Date will be made in immediately available funds upon presentation and
surrender of this Note (and, with respect to any applicable repayment of this Note, upon delivery of instructions as contemplated on
the reverse hereof) at the office or agency maintained by the Company for that purpose in the Borough of Manhattan, The City of New York,
currently the office of the Trustee located at 101 Barclay Street, New York, New York 10286, or at such other paying agency in the Borough
of Manhattan, The City of New York, as the Company may determine; provided, however, that if the Specified Currency (as defined
below) is other than United States dollars and such payment is to be made in the Specified Currency in accordance with the provisions
set forth below, such payment will be made by wire transfer of immediately available funds to an account with a bank designated by the
Holder hereof at least 15 calendar days prior to the Maturity Date, provided that such bank has appropriate facilities therefor and that
this Note is presented and surrendered and, if applicable, instructions are delivered at the aforementioned office or agency maintained
by the Company in time for the Trustee to make such payment in such funds in accordance with its normal procedures. Payment of interest
due on any Interest Payment Date other than the Maturity Date will be made at the aforementioned office or agency maintained by the Company
or, at the option of the Company, by check mailed to the address of the person entitled thereto as such address shall appear in the Security
Register maintained by the Trustee; provided, however, that a Holder of U.S. $10,000,000 (or, if the Specified Currency is other
than United States dollars, the equivalent thereof in the Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive interest payments on such Interest Payment Date by wire
transfer of immediately available funds if such Holder has delivered appropriate wire transfer instructions in writing to the Trustee
not less than 15 calendar days prior to such Interest Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such Holder.
If any Interest Payment Date
or the Maturity Date falls on a day that is not a Business Day, the required payment of principal, premium, if any, and/or interest shall
be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such Interest Payment Date or the Maturity Date, as the case
may be, to the date of such payment on the next succeeding Business Day.
As used herein, “Business
Day” means any day other than a Saturday, Sunday or other day on which banking institutions in The City of New York are authorized
or obligated by law, regulation or executive order to close; provided that such term shall mean, when used with respect to any payment
of principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the Notes to be made at any Place of Payment
for such Notes, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment are authorized
or obligated by law, regulation or executive order to close.
The Company is obligated
to make payment of principal, premium, if any, and interest in respect of this Note in the Specified Currency specified above (or, if
such Specified Currency is not at the time of such payment legal tender for the payment of public and private debts in the country issuing
such Specified Currency or, if such Specified Currency is Euro, in the member states of the European Union that have adopted the single
currency in accordance with the Treaty establishing the European Community, as amended by the Treaty on European Union, then in the currency
which is at the time of such payment legal tender in the related country or in the adopting member states of the European Union) (the
“Specified Currency”). If the Specified Currency is other than United States dollars, except as otherwise provided below,
any such amounts so payable by the Company will be converted by the Exchange Rate Agent specified above into United States dollars for
payment to the Holder of this Note.
If the Specified Currency
is other than United States dollars, the Holder of this Note may elect to receive any amounts payable hereunder in such Specified Currency.
If the Holder of this Note shall not have duly made an election to receive all or a specified portion of any payment of principal, premium,
if any, and/or interest in respect of this Note in the Specified Currency, any United States dollar amount to be received by the Holder
of this Note will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent at approximately
11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the Company for the purchase
by the quoting dealer of the Specified Currency for United States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all Holders of Notes scheduled to receive United States dollar payments and at which the applicable
dealer commits to execute a contract. All currency exchange costs will be borne by the Holder of this Note by deductions from such payments.
If three such bid quotations are not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency
is other than United States dollars, the Holder of this Note may elect to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be mailed or hand delivered or sent by cable, telex or other
form of facsimile transmission. The Holder of this Note may elect to receive all or a specified portion of all future payments in the
Specified Currency in respect of such principal, premium, if any, and/or interest and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be.
If the Specified Currency
is other than United States dollars and the Holder of this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this Note in the Specified Currency, but the Specified Currency
is not available due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will
be entitled to satisfy its obligations to the Holder of this Note by making such payment in United States dollars on the basis of the
Market Exchange Rate (as defined below) determined by the Exchange Rate Agent on the second Business Day prior to such payment date or,
if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate. The “Market
Exchange Rate” for the Specified Currency means the noon dollar buying rate in The City of New York for cable transfers for the
Specified Currency as certified for customs purposes (or, if not so certified, as otherwise determined) by the Federal Reserve Bank of
New York. Any payment made in United States dollars under such circumstances shall not constitute an Event of Default (as defined in
the Indenture).
All determinations referred
to above made by the Exchange Rate Agent shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on the Holder of this Note.
Reference is hereby made
to the further provisions of this Note set forth on the reverse hereof and, if so specified on the face hereof, in an Addendum hereto,
which further provisions shall have the same force and effect as if set forth on the face hereof.
Notwithstanding any provisions
to the contrary contained herein, if the face of this Note specifies that an Addendum is attached hereto and/or that “Other/Additional
Provisions” apply to this Note, this Note shall be subject to the terms set forth in such Addendum and/or such “Other/Additional
Provisions,” and the terms set forth in such Addendum and/or such “Other/Additional Provisions” shall supersede any
provisions in this Note to the extent that there may be any conflict or ambiguity between (a) the terms in such Addendum and/or
such “Other/Additional Provisions” and (b) the terms in this Note
Unless the Certificate of
Authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed by one of its duly authorized officers.
| Dated: December 7, 2023 |
AVALONBAY COMMUNITIES, INC. |
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|
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By: |
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Name: |
Kevin P. O’Shea |
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Title: |
Chief Financial Officer |
| [Corporate Seal] |
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| Attest: |
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| By: |
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| Name: |
Edward M. Schulman |
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| Title: |
Executive Vice President –
General Counsel and Secretary |
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities
of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, |
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as Trustee |
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| Dated: |
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By: |
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Name: |
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Title: |
[REVERSE OF NOTE]
AVALONBAY COMMUNITIES, INC.
5.300% Senior Notes due 2033
This Note is one of a duly
authorized issue of Debt Securities (the “Debt Securities”) of the Company of the series hereinafter specified, all issued
and to be issued under the Indenture, dated as of February 23, 2018, as amended by the First Supplemental Indenture, dated as of
March 26, 2018 and the Second Supplemental Indenture, dated as of May 29, 2018 (collectively, the “Indenture”),
as further amended, modified or supplemented from time to time, each between the Company and THE BANK OF NEW YORK MELLON, as trustee
(the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Debt Securities, and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. All terms used but not defined in this Note or in an Addendum hereto shall have the meanings assigned to
such terms in the Indenture or on the face hereof, as the case may be. This Note is one of a series of Debt Securities designated as
the 5.300% Senior Notes due 2033 (collectively, the “Notes”) of the Company.
This Note is issuable only
in registered form without coupons in minimum denominations of U.S. $2,000 and integral multiples $1,000 in excess thereof, or other
Authorized Denomination specified on the face hereof.
This Note will not be subject
to any sinking fund and, unless otherwise specified on the face hereof in accordance with the provisions of the following two paragraphs
or in an Addendum referred to on the face hereof, will not be redeemable or repayable prior to the Stated Maturity Date.
This Note will be subject
to redemption at the option of the Company on any date on or after the Initial Redemption Date, if any, specified on the face hereof,
in whole or from time to time in part in increments of U.S. $2,000 or other integral multiple of an Authorized Denomination (provided
that any remaining principal amount hereof shall be at least U.S. $2,000 or such other minimum Authorized Denomination), at the Redemption
Price (as defined below), together with unpaid interest accrued thereon to the date fixed for redemption (the “Redemption Date”),
on written notice given to the Holder hereof (in accordance with the provisions of the Indenture) not more than 60 nor less than 10 calendar
days prior to the Redemption Date. The “Redemption Price” shall be the Initial Redemption Percentage specified on the face
hereof (as adjusted by the Annual Redemption Percentage Reduction, if any, specified on the face hereof as set forth below) multiplied
by the unpaid principal amount of this Note to be redeemed. The Initial Redemption Percentage shall decline at each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction, if any, until the Redemption Price is 100% of unpaid principal
amount to be redeemed. In the event of redemption of this Note in part only, a new Note of like tenor for the unredeemed portion hereof
and otherwise having the same terms and provisions as this Note shall be issued by the Company in the name of the Holder hereof upon
the presentation and surrender hereof.
This Note will be subject
to repayment by the Company at the option of the Holder hereof on the Optional Repayment Date(s), if any, specified on the face hereof,
in whole or in part in increments of U.S. $2,000 or other integral multiple of an Authorized Denomination (provided that any remaining
principal amount hereof shall be at least U.S. $2,000 or such other minimum Authorized Denomination), at a repayment price equal to 100%
of the unpaid principal amount to be repaid, together with unpaid interest accrued thereon to the date fixed for repayment (the “Repayment
Date”). For this Note to be repaid, the Trustee must receive at its corporate trust office not more than 60 nor less than 5 calendar
days prior to the Repayment Date, such Note and instructions to such effect forwarded by the Holder hereof. Exercise of such repayment
option by the Holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note of like tenor for the
unrepaid portion hereof and otherwise having the same terms and provisions as this Note shall be issued by the Company in the name of
the Holder hereof upon the presentation and surrender hereof.
If this Note is specified
on the face hereof to be a Discount Note, the amount payable to the Holder of this Note in the event of redemption, repayment or acceleration
of maturity will be equal to the sum of (1) the Issue Price specified on the face hereof (increased by any accruals of the Discount,
as defined below) and, in the event of any redemption of this Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid interest accrued thereon to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the “Discount”.
For purposes of determining
the amount of Discount that has accrued as of any Redemption Date, Repayment Date or date of acceleration of maturity of this Note, such
Discount will be accrued so as to cause the yield on the Note to be constant. The constant yield will be calculated using a 30-day month,
360-day year convention, a compounding period that, except for the Initial Period (as defined below), corresponds to the shortest period
between Interest Payment Dates (with ratable accruals within a compounding period) and an assumption that the maturity of this Note will
not be accelerated. If the period from the Original Issue Date to the initial Interest Payment Date (the “Initial Period”)
is shorter than the compounding period for this Note, a proportionate amount of the yield for an entire compounding period will be accrued.
If the Initial Period is longer than the compounding period, then such period will be divided into a regular compounding period and a
short period, with the short period being treated as provided in the preceding sentence.
If an Event of Default, as
defined in the Indenture, shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions
for defeasance of (i) the entire indebtedness of the Notes or (ii) certain covenants and Events of Default with respect to
the Notes, in each case upon compliance with certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the
rights of the Holders of the Debt Securities at any time by the Company and the Trustee with the consent of the Holders of a majority
of the aggregate principal amount of all Debt Securities at the time outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority of the aggregate principal amount of the outstanding Debt Securities of any series, on behalf of
the Holders of all such Debt Securities, to waive compliance by the Company with certain provisions of the Indenture. Furthermore, provisions
in the Indenture permit the Holders of a majority of the aggregate principal amount of the outstanding Debt Securities of any series,
in certain instances, to waive, on behalf of all of the Holders of Debt Securities of such series, certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange heretofore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay principal, premium, if any, and interest in respect of this Note at the times, places and rate or formula, and
in the coin or currency, herein prescribed.
As provided in the Indenture
and subject to certain limitations therein and herein set forth, the transfer of this Note is registrable in the Security Register of
the Company upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal
hereof and any premium or interest hereon are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney duly authorized in writing, and thereupon
one or more new Notes having the same terms and provisions, of Authorized Denominations and for the same aggregate principal amount,
will be issued by the Company to the designated transferee or transferees.
As provided in the Indenture
and subject to certain limitations therein and herein set forth, this Note is exchangeable for a like aggregate principal amount of Notes
of different Authorized Denominations but otherwise having the same terms and provisions, as requested by the Holder hereof surrendering
the same.
No service charge shall be
made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment
of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Holder
as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary, except as required by law.
This Note and all documents,
agreements, understandings and arrangements relating to any transaction contemplated hereby or thereby have been executed or entered
into by the undersigned in his/her capacity as an officer of the Company which has been formed as a Maryland corporation, and not individually.
No recourse under or upon any obligation, covenant or agreement contained in the Indenture or in this Note, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or against any past, present or future shareholder, officer
or director, as such, of the Company or of any successor, either directly or through the Company or any successor, 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 this Note by the holder thereof and as part of the consideration
for the issue of this Note.
THE INDENTURE AND THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused “CUSIP” numbers to be
printed on the Securities of this series as a convenience to the holders of such Securities. No representation is made as to the correctness
or accuracy of such CUSIP numbers as printed on the Securities, and reliance may be placed only on the other identification numbers printed
hereon.
ABBREVIATIONS
The following abbreviations,
when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable
laws or regulations:
| TEN COM |
- as tenants
in common |
UNIF GIFT MIN ACT |
- ________ Custodian ______ |
| TEN ENT |
- as tenants by the
entireties |
|
(Cust) (Minor) |
| JT TEN |
- as joint tenants with
right of survivorship and not as tenants in common |
Under Uniform Gifts to Minors Act_____________
(State) |
| |
Additional abbreviations
may also be used though not in the above list. |
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address including postal zip code
of assignee)
this Note and all rights thereunder hereby irrevocably
constituting and appointing
Attorney to transfer this Note on the books of
the Trustee, with full power of substitution in the premises.
| Dated: |
|
|
|
| |
|
|
|
| |
|
|
Notice: The signature(s)
on this Assignment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration
or enlargement or any change whatsoever. |
ANNEX A TO
AVALONBAY COMMUNITIES, INC.
Certificate No. 1 -- $400,000,000 Principal
Amount
Other/Additional Provisions:
Optional Redemption
Prior to September 7,
2033 (three months prior to the maturity date of the Notes) (the “Par Call Date”), the Company 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:
(1) (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 (as
defined below) plus 20 basis points less (b) interest accrued to the date of redemption, and
(2) 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 Company 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 purposes of determining the optional redemption
price, the following definitions are applicable:
“Treasury Rate”
means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be
determined by the Company 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 Company 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 Company 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 Company 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 Company 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.
The Company’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.
Notice of any redemption
will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days
but not more than 60 days before the redemption date to each holder of Notes to be redeemed.
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.
Unless the Company defaults
in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called
for redemption.
Acceleration of Maturity
If an Event of Default with
respect to the Notes that are then outstanding occurs and is continuing, and pursuant to Section 502 of the Indenture, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the then outstanding Notes shall have declared the principal of,
and premium, if any, on all the Notes, or such lesser amount as may be provided for in the Notes, and accrued and unpaid interest, if
any, thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), then
upon any such declaration such principal, or specified portion thereof, plus accrued interest to the date the Notes are paid, plus any
redemption premium on the Notes, shall become immediately due and payable.
If an Event of Default set
forth in Section 501(5) of the Indenture occurs with respect to the Notes, such that pursuant to Section 502 of the Indenture,
the principal of, and premium, if any, on all of the Notes, or such lesser amount as may be provided for in the Notes, and accrued and
unpaid interest, if any, thereon, shall be immediately due and payable, without declaration or other act on the part of the Trustee or
any Holder of the Notes, then the redemption premium on the Notes, if any, shall also be immediately due and payable.
Exhibit 5.1
 |
Goodwin Procter llp
620 Eighth Avenue
New York, NY 10018
goodwinlaw.com
+1 212 813-8800 |
December 7, 2023
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. 333-253532) (as amended or supplemented, the “Registration
Statement”) filed on February 25, 2021 with the Securities and Exchange Commission (the “Commission”)
pursuant to 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 25,
2021.
Reference is made to our opinion letter dated
February 25, 2021 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 December 5, 2023 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 5.300% Senior Notes due 2033 (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,
2018, between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) (the “2018 Indenture”),
as amended and supplemented by the First Supplemental Indenture, dated as of March 26, 2018, between the Company and the Trustee
(the “First Supplemental Indenture”) and the Second Supplemental Indenture dated as of May 29, 2018 between the
Company and the Trustee (collectively with the 2018 Indenture and the First Supplemental Indenture, the “Indenture”).
We refer to the Indenture and the Notes as the “Subject Documents.”
AvalonBay Communities, Inc.
December 7, 2023
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 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 as to enforceability 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.
December 7, 2023
Page 3
(iii) To the extent
that any opinion set forth herein 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 rendered solely in reliance upon 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 such 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.
This opinion letter and the opinions 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 December 7, 2023, 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
and the Prospectus Supplement. 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.
| |
Very truly yours, |
| |
|
| |
/s/ Goodwin Procter LLP |
| |
GOODWIN PROCTER LLP |
v3.23.3
Cover
|
Dec. 07, 2023 |
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Dec. 07, 2023
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|
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AVALONBAY
COMMUNITIES, INC.
|
| Entity Central Index Key |
0000915912
|
| Entity Tax Identification Number |
77-0404318
|
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MD
|
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|
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