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EXHIBIT 1.1
AVALONBAY COMMUNITIES, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
TERMS AGREEMENT
April 14, 2004
AvalonBay Communities, Inc.
2900 Eisenhower Avenue, Suite 300
Alexandria, VA 22314
Reference is made to (i) that certain Amended and Restated
Distribution
Agreement, dated as of August 6, 2003
(including any exhibits and schedules
thereto, the "Distribution Agreement"), by
and among AvalonBay Communities,
Inc., a Maryland corporation (the "Company"
or "AvalonBay"), each of Banc of
America Securities LLC, Citigroup Global
Markets Inc., Fleet Securities, Inc.,
J.P. Morgan Securities Inc., Lehman
Brothers Inc., Morgan Stanley & Co.
Incorporated and Wachovia Capital Markets,
LLC, (ii) that certain Appointment
Agreement, dated the date hereof, by and
between the Company and SunTrust
Capital Markets, Inc., (iii) that certain
Appointment Agreement, dated the date
hereof, by and between the Company and
Deutsche Bank Securities Inc., and (iv)
that certain Appointment Agreement, dated
the date hereof, by and between the
Company and McDonald Investments Inc. (the
agreements in (ii), (iii) and (iv)
are collectively, the "Appointment
Agreements" and the entities listed on
SCHEDULE 1 hereto are collectively the
"Agents"). Wachovia Capital Markets, LLC
and Banc of America Securities LLC have
agreed to act as the representatives
(the "Representatives") of the Agents in
connection with this Terms Agreement
(this "Agreement"). Capitalized terms used,
but not defined, in this Agreement
are used in this Agreement as defined in
the Distribution Agreement. This
Agreement is one of the Written Terms
Agreements referred to in Section 4(a) of
the Distribution Agreement.
In accordance with and subject to the terms and conditions stated
in
this Agreement, the Distribution Agreement
and the Appointment Agreements, which
agreements are incorporated herein in their
entirety and made a part hereof, the
Company agrees to sell to the Agents, and
each of the Agents severally agrees to
purchase, as principal, from the Company
the aggregate principal amount set
forth opposite its name in SCHEDULE 1
hereto of the Company's Notes identified
on SCHEDULE 2 hereto. If one or more of the
Agents shall fail at the Settlement
Date to purchase the Notes which it or they
are obligated to purchase under this
Agreement, the procedures set forth in
Section 4(a) of the Distribution
Agreement shall apply.
The obligations of the Agents to purchase Notes shall be subject,
in
addition to the conditions precedent listed
in the Distribution Agreement and
the Appointment Agreements, to the delivery
of the following documents to the
Representatives, on or before the
Settlement Date:
1. the
opinions and letters referred to in Sections 6(a), 6(b) and
6(c) and of the Distribution Agreement, each dated the
Settlement
Date and otherwise in substantially the same form as was
delivered in connection with the Company's November 7, 2002
public offering of medium-term notes (the "Prior Offering");
2. the
letters of Ernst & Young LLP referred to in Section 6(d) of
the Distribution Agreement, dated the date hereof and the
Settlement Date and otherwise in substantially the same forms
as
were delivered in connection with the Prior Offering; and
3. the
officers' certificate referred to in Section 6(e) of the
Distribution Agreement, dated the Settlement Date and otherwise
in substantially the same form as was delivered in connection
with the Prior Offering.
All such opinions, certificates, letters and other documents will
be in
compliance with the provisions hereof only
if they are reasonably satisfactory
in form and substance to the
Representatives of
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the Agents and their counsel. The Company
will furnish the Agents with such
conformed copies of such opinions,
certificates, letters and other documents as
the Agents shall reasonably request.
This Agreement shall be governed by the laws of the State of New
York.
This Agreement, the Distribution Agreement
and the Appointment Agreements
constitute the entire agreement of the
parties regarding the offering of Notes
contemplated by this Agreement and
supersede all prior written or oral and all
contemporaneous oral agreements,
understandings and negotiations with respect to
the subject matter hereof. This Agreement
may be executed in one or more
counterparts and, if executed in more than
one counterpart, the executed
counterparts shall each be deemed to be an
original but all such counterparts
shall together constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the
date first above written.
AVALONBAY COMMUNITIES, INC.
By: /s/
THOMAS J. SARGEANT
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Name: Thomas J.
Sargeant
Title: Executive Vice President and
Chief Financial Officer
WACHOVIA CAPITAL MARKETS, LLC
For itself and
as the Representative
of the several
Agents named
in SCHEDULE 1
hereto
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By: /s/ TERESA HEE
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Name: Teresa Hee
Title: Dire
