EX-1.3 3 a2058620zex-1_3.txt EXHIBIT 1.3 Exhibit 1.3 AVALONBAY COMMUNITIES, INC. MEDIUM-TERM NOTES DUE NINE MONTHS OR MORE FROM DATE OF ISSUE SECOND AMENDMENT TO DISTRIBUTION AGREEMENT August 31, 2001 THIS SECOND AMENDMENT (this "Second Amendment") is made and entered into as of August 31, 2001 (the "Effective Date") by and among AvalonBay Communities, Inc., a Maryland corporation (the "Company"), Lehman Brothers Inc., Banc of America Securities LLC (formerly known as NationsBanc Montgomery Securities LLC), First Union Securities, Inc. (formerly known as First Union Capital Markets) and J.P. Morgan Securities Inc. (collectively, the "Original Agents"), Fleet Securities, Inc. and PNC Capital Markets, Inc. (collectively, the "Supplemental Agents" and, together with the Original Agents, the "Existing Agents"), and Salomon Smith Barney Inc. (the "New Agent"). Each of the Company, the Existing Agents and the New Agent is referred to as a "Party" and collectively as the "Parties." THE PARTIES ENTER THIS SECOND AMENDMENT on the basis of the following facts, understandings and intentions: A. The Company, the Original Agents (excluding Lehman Brothers Inc. with respect to the Original Agreement (as defined below)), PaineWebber Incorporated and UBS Warburg LLC (formerly known as Warburg Dillon Read LLC) are parties to that certain Distribution Agreement dated as of December 21, 1998 (the "Original Agreement"), as amended by that certain First Amendment to Distribution Agreement, dated as of June 27, 2000 (the "First Amendment," and together with the Original Agreement, the "Distribution Agreement"), which relate to a medium-term notes program for the Company. (Capitalized terms used in this Second Amendment without definition are used as defined in the Distribution Agreement.) B. The Company and the Supplemental Agents are parties to Supplement No. 1 to Distribution Agreement, dated as of January 26, 1999, pursuant to which the Supplemental Agents each became a party to, and Agents under, the Distribution Agreement. C. Prior to the Effective Date, the Company has given notice to each of UBS Warburg LLC and PaineWebber Incorporated that the Company has terminated the Distribution Agreement with respect to each of them, respectively (and by the execution of this Second Amendment, the Company hereby gives notice of such terminations to the Existing Agents), pursuant to Section 13 of the Distribution Agreement. D. The Parties desire to amend the Distribution Agreement to add the New Agent as an Agent under the Distribution Agreement NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements contained in this Second Amendment, the Parties agree as follows: 1. ADDITION OF NEW AGENT. The definition of "Agent" in the first paragraph of the Distribution Agreement is hereby amended as follows in order to admit the New Agent as an Agent under the Distribution Agreement. From and after the Effective Date, and reflecting the written termination notices by the Company referred to in Recital C above, the defined term "Agents" shall refer to Lehman 1 Brothers Inc., Banc of America Securities LLC, First Union Securities, Inc., Fleet Securities, Inc., J.P. Morgan Securities Inc., PNC Capital Markets, Inc. and Salomon Smith Barney Inc. 2. NOTICE ADDRESSES. The notice provision of Section 14(b) of the Distribution Agreement is amended by: (A) deleting therefrom the name and address of J.P. Morgan Securities Inc. and inserting the following in lieu thereof: "J.P. Morgan Securities Inc. 270 Park Avenue, 9th Floor New York, New York 10017 Attention: Transaction Execution Group Telephone: (212) 834-5710 Facsimile: (212) 834-6702"; (B) adding the following immediately following the address for Lehman Brothers Inc.: " and Lehman Brothers Inc. 3 World Financial Center New York, New York 10285 Attention: Medium-Term Note Desk Telephone: (212) 526-8400 Facsimile: (212) 526-1682 with a copy to: O'Melveny & Myers LLP 275 Battery Street, Suite 2600 San Francisco, CA 94111-3305 Attention: Peter T. Healy, Esq. Telephone: (415) 984-8833 Facsimile: (415) 984-8701"; (C) adding the following immediately prior to the final paragraph of such section: "Fleet Securities, Inc. 100 Federal Street, MADE 10012H Boston, MA 02110 Attention: John Crees Telephone: (617) 434-5983 Telecopy: (617) 434-8702 PNC Capital Markets, Inc. 249 Fifth Avenue, 26th Floor Pittsburgh, PA 15222-2707 Attention: Manager - Syndicate Desk Telephone: (412) 762-4256 Telecopy: (412) 762-3443 2 Salomon Smith Barney Inc. Medium-Term Note Department 388 Greenwich Street New York, NY 10013 Telephone: (212) 816-5831 Telecopy: (212) 816-0949"; and (D) deleting therefrom the name and address of each of PaineWebber Incorporated and Warburg Dillon Read LLC. 3. ADDRESSES FOR ADMINISTRATIVE PROCEDURES. Within the Administrative Procedures Exhibit B to the Distribution Agreement, the Sections of Parts I and II titled "Procedure for Rate Changes" and the Sections of Parts I, II and III titled "Delivery of Prospectus" are hereby amended by: (A) deleting therefrom the name and address of J.P. Morgan Securities Inc. and inserting the following in lieu thereof: "if to: J.P. Morgan Securities Inc. to: 270 Park Avenue, 8th Floor New York, New York 10017 Attention: Medium-Term Note Desk Telephone: (212) 834-4421 Facsimile: (212) 834-6081"; (B) deleting therefrom the name and address of Lehman Brothers Inc. and inserting the following in lieu thereof: "if to: Lehman Brothers Inc. to both: 3 World Financial Center New York, New York 10285 Attention: Medium Term Note Desk Telephone: (212) 526-8400 Facsimile: (212) 526-1682 and ADP Prospectus Services For Lehman Brothers Inc. 55 Mercedes Way Edgewood, NY 11717 Attention: Client Services Desk Facsimile: (631) 254-7268"; 3 (C) adding the following immediately following the address of Lehman Brothers Inc.: "if to: Fleet Securities, Inc. to: 100 Federal Street, MADE 10012H Boston, MA 02110 Attention: John Crees Telephone: (617) 434-5983 Telecopy: (617) 434-8702 if to: PNC Capital Markets, Inc. to: 249 Fifth Avenue, 26th Floor Pittsburgh, PA 15222-2707 Attention: Manager - Syndicate Desk Telephone: (412) 762-4256 Telecopy: (412) 762-3443 if to: Salomon Smith Barney Inc. to: Brooklyn Army Terminal 140 58th Street, 8th Floor Brooklyn, NY 11220 Attention: Annabelle Avila Telephone: (718) 765-6725 Telecopy: (718) 765-6734 Or such other address as each such Agent may from time to time provide to the Company"; and (D) deleting therefrom the name and address of each of PaineWebber Incorporated and Warburg Dillon Read LLC. 4. COUNTERPARTS. This Second Amendment may be executed in one or more counterparts, signature pages may be detached from such separately executed counterparts and reattached to other counterparts and, in each such case, the executed counterparts hereof shall constitute a single instrument. Signature pages may be delivered by telecopy. 5. CONFIRMATION. Except as amended by this Second Amendment, the Distribution Agreement is hereby ratified and confirmed in all respects. [Signature pages follow.] 4 If the foregoing correctly sets forth the understanding between the Company, the Existing Agents and the New Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company, the Existing Agents and the New Agent. AVALONBAY COMMUNITIES, INC. By: /s/ Thomas J. Sargeant -------------------------- Thomas J. Sargeant Chief Financial Officer "New Agent" SALOMON SMITH BARNEY INC. By: /s/ Suni Harford ------------------------------------------------- Name: Suni Harford Title: Managing Director "Existing Agents" LEHMAN BROTHERS INC. By: /s/ Frederick T. Caven, Jr. ------------------------------------------------- Name: Frederick T. Caven, Jr. Title: Managing Director FIRST UNION SECURITIES, INC. By: /s/ Keith Mauney ------------------------------------------------- Name: Keith Mauney Title: Managing Director J.P. MORGAN SECURITIES INC. By: /s/ Huw L. Richards ------------------------------------------------- Name: Huw L. Richards Title: Vice-President BANC OF AMERICA SECURITIES LLC By: /s/ Sammy Hicks ------------------------------------------------- Name: Sammy Hicks Title: Associate FLEET SECURITIES, INC. By: /s/ Paul E. McCormack ------------------------------------------------- Name: Paul E. McCormack Title: Managing Director PNC CAPITAL MARKETS, INC. By: /s/ Robert W. Thomas ------------------------------------------------- Name: Robert W. Thomas Title: Managing Director