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) February 27, 2013

 

AVALONBAY COMMUNITIES, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland

(State or Other Jurisdiction of Incorporation)

 

1-12672

 

77-0404318

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

671 N. Glebe Road, Suite 800, Arlington, Virginia

 

22203

(Address of Principal Executive Offices)

 

(Zip Code)

 

 (703) 329-6300
(Registrant’s telephone number, including area code)

 

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:

 

o            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

ITEM 1.01  ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

 

ITEM 2.01  COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS.

 

Closing of the Archstone Acquisition

 

On February 27, 2013, pursuant to an asset purchase agreement (the “Purchase Agreement”) dated November 26, 2012, by and among us, Equity Residential and its operating partnership, ERP Operating Limited Partnership (together, “Equity”), Lehman Brothers Holdings, Inc. (“Lehman”), and Archstone Enterprise LP (“Archstone”), we, together with Equity, acquired, directly or indirectly, all of Archstone’s assets, including all of the ownership interests in joint ventures and other entities owned by Archstone, and assumed Archstone’s liabilities, with certain limited exceptions.  The execution of the Purchase Agreement was previously reported on our Current Report on Form 8-K filed on November 26, 2012, and a copy of the Purchase Agreement was previously filed as Exhibit 2.1 to that Current Report on Form 8-K.

 

Under the terms of the Purchase Agreement, we acquired approximately 40% of Archstone’s assets and liabilities and Equity acquired approximately 60% of Archstone’s assets and liabilities (the “Archstone Acquisition”). We acquired the following:

 

·                  60 apartment communities that will be consolidated for financial reporting purposes, containing 20,089 apartment homes, of which six communities are under construction and/or in lease-up and are expected to contain 1,667 apartment homes upon completion;

·                  five parcels of land and options to acquire two more parcels of land that will be consolidated for financial reporting purposes which, if developed as expected, will contain a total of 2,214 apartment homes;

·                  interests in unconsolidated joint ventures in which we are the general partner or managing member, which own 12 apartment communities containing 2,851 apartment homes; and

·                  a 40% ownership interest in unconsolidated joint venture arrangements with Equity which will hold assets and liabilities that we and Equity will jointly manage, and that we and Equity intend to sell to or resolve  with third parties, and/or subsequently transfer to Equity or to us.

 

Operating Apartment Communities

 

The table below provides community level detail for the operating apartment communities in which we have acquired a direct or indirect interest in connection with the Archstone Acquisition.

 

Community

 

Location

 

Number
of
Homes

 

Average
SF per
Home

 

Year
Built (1)

 

Revenue per
Occupied
Home (2)

 

 

 

 

 

 

 

 

 

 

 

 

 

New England

 

 

 

 

 

 

 

 

 

 

 

Archstone North Point(3)

 

Cambridge, MA

 

426

 

900

 

2008

 

$

3,228

 

Archstone Station 250(4)

 

Dedham, MA

 

285

 

1,075

 

2011

 

1,839

 

Archstone Quincy

 

Quincy, MA

 

224

 

705

 

1977

 

1,726

 

Archstone Bear Hill

 

Waltham, MA

 

324

 

1,208

 

1999

 

2,533

 

Subtotal - New England

 

 

 

1,259

 

984

 

 

 

$

2,467

 

 

 

 

 

 

 

 

 

 

 

 

 

Metro New York/New Jersey

 

 

 

 

 

 

 

 

 

 

 

Archstone Meadowbrook Crossing

 

Westbury, NY

 

396

 

1,014

 

2006

 

$

2,542

 

Archstone Midtown West

 

New York, NY

 

550

 

716

 

1998

 

3,886

 

 

2



 

Archstone Clinton North

 

New York, NY

 

339

 

536

 

2008

 

2,950

 

Archstone Clinton South

 

New York, NY

 

288

 

557

 

2007

 

3,014

 

 

 

 

 

 

 

 

 

 

 

 

 

Kips Bay(4)

 

New York, NY

 

209

 

729

 

1997

 

4,540

 

Subtotal - Metro New York/New Jersey

 

 

 

1,782

 

724

 

 

 

$

3,345

 

 

 

 

 

 

 

 

 

 

 

 

 

Mid-Atlantic

 

 

 

 

 

 

 

 

 

 

 

Archstone Ballston Place

 

Arlington, VA

 

383

 

871

 

2001

 

$

2,570

 

Crystal House I(5)

 

Arlington, VA

 

426

 

880

 

1969

 

2,028

 

Crystal House II(5)

 

Arlington, VA

 

401

 

913

 

1965

 

1,951

 

Archstone Ballston Square

 

Arlington, VA

 

714

 

877

 

1992

 

2,350

 

Archstone Courthouse Place

 

Arlington, VA

 

564

 

849

 

1999

 

2,428

 

Oakwood Arlington(6)

 

Arlington, VA

 

184

 

839

 

1987

 

1,738

 

Archstone Woodland Park(3)

 

Herndon, VA

 

392

 

1,003

 

2000

 

1,688

 

Archstone Reston Landing

 

Reston, VA

 

400

 

995

 

2000

 

1,813

 

Archstone Tysons Corner

 

Vienna, VA

 

217

 

967

 

1980

 

1,790

 

The Albemarle

 

Washington, DC

 

228

 

1,123

 

1966

 

2,569

 

Tunlaw Gardens

 

Washington, DC

 

166

 

816

 

1944

 

1,807

 

The Statesman

 

Washington, DC

 

281

 

678

 

1961

 

1,943

 

Archstone Glover Park

 

Washington, DC

 

120

 

869

 

1953

 

2,346

 

The Consulate

 

Washington, DC

 

268

 

843

 

1978

 

2,193

 

Brandywine(7)(8)

 

Washington, DC

 

305

 

1,280

 

1954

 

N/A

 

Archstone Russett

 

Laurel, MD

 

238

 

1,154

 

1999

 

1,817

 

Grosvenor Tower(4)

 

North Bethesda, MD

 

236

 

972

 

1987

 

2,040

 

Archstone Wheaton Station

 

Wheaton, MD

 

243

 

884

 

2005

 

1,809

 

Oakwood Philadelphia(6)

 

Philadelphia, PA

 

80

 

831

 

1945

 

1,573

 

Subtotal - Mid-Atlantic

 

 

 

5,846

 

928

 

 

 

$

2,085

 

 

 

 

 

 

 

 

 

 

 

 

 

Pacific Northwest

 

 

 

 

 

 

 

 

 

 

 

Kirkland at Carillon Point(4)

 

Kirkland, WA

 

130

 

1,344

 

1990

 

$

2,209

 

Archstone Redmond Campus

 

Redmond, WA

 

422

 

1,017

 

1991

 

1,639

 

Archstone Redmond Lakeview

 

Redmond, WA

 

166

 

849

 

1987

 

1,402

 

 

3



 

Subtotal - Pacific Northwest

 

 

 

718

 

1,037

 

 

 

$

1,687

 

 

 

 

 

 

 

 

 

 

 

 

 

Northern California

 

 

 

 

 

 

 

 

 

 

 

Archstone Walnut Creek

 

Walnut Creek, CA

 

510

 

746

 

1987

 

$

1,549

 

Archstone Walnut Ridge

 

Walnut Creek, CA

 

106

 

764

 

2000

 

1,869

 

Archstone Walnut Creek Station

 

Walnut Creek, CA

 

360

 

700

 

1989

 

1,592

 

Archstone San Bruno

 

San Bruno, CA

 

300

 

891

 

2004

 

2,240

 

Archstone San Bruno II

 

San Bruno, CA

 

185

 

846

 

2007

 

2,145

 

Archstone San Bruno III

 

San Bruno, CA

 

187

 

1,237

 

2005

 

2,965

 

Mountain View at Middlefield(9)

 

Mountain View, CA

 

402

 

651

 

1969

 

N/A

 

Archstone Willow Glen

 

San Jose, CA

 

412

 

928

 

2002

 

1,976

 

West Valley(9)

 

San Jose, CA

 

789

 

639

 

1970

 

N/A

 

Archstone Sunnyvale(4)

 

Sunnyvale, CA

 

192

 

1,063

 

1991

 

2,271

 

Subtotal - Northern California

 

 

 

3,443

 

790

 

 

 

$

1,969

 

 

 

 

 

 

 

 

 

 

 

 

 

Southern California

 

 

 

 

 

 

 

 

 

 

 

Archstone Los Feliz

 

Los Angeles, CA

 

263

 

767

 

1989

 

$

1,686

 

Oakwood Toluca Hills(6)

 

Los Angeles, CA

 

1,151

 

691

 

1973

 

1,183

 

Archstone Marina Bay(4)(10)(11)

 

Marina del Rey, CA

 

205

 

815

 

1967

 

N/A

 

Archstone Pasadena

 

Pasadena, CA

 

120

 

854

 

2004

 

2,272

 

Archstone Del Mar Station

 

Pasadena, CA

 

347

 

975

 

2006

 

2,133

 

Archstone Old Town Pasadena

 

Pasadena, CA

 

96

 

692

 

1972

 

1,723

 

Archstone Santa Monica on Main

 

Santa Monica, CA

 

133

 

921

 

2007

 

3,887

 

Archstone Studio City

 

Studio City, CA

 

450

 

736

 

1987

 

1,786

 

Archstone Studio City II

 

Studio City, CA

 

101

 

834

 

1991

 

1,891

 

Archstone Studio City III

 

Studio City, CA

 

276

 

955

 

2002

 

2,303

 

Archstone Studio 4041(4)

 

Studio City, CA

 

149

 

841

 

2009

 

2,031

 

Venice on Rose(4)

 

Venice, CA

 

70

 

1,207

 

2011

 

4,663

 

Archstone Woodland Hills(9)

 

Woodland Hills, CA

 

883

 

655

 

1971

 

N/A

 

Seal Beach(9)

 

Seal Beach, CA

 

549

 

706

 

1971

 

N/A

 

Archstone La Mesa

 

La Mesa, CA

 

168

 

830

 

1989

 

1,538

 

Archstone La Jolla Colony

 

San Diego, CA

 

180

 

761

 

1987

 

1,642

 

 

4



 

Archstone Oak Creek

 

Agoura Hills, CA

 

336

 

1,084

 

2004

 

2,230

 

Archstone Calabasas

 

Calabasas, CA

 

600

 

844

 

1988

 

1,708

 

Archstone Simi Valley

 

Simi Valley, CA

 

500

 

860

 

2007

 

1,655

 

Archstone Thousand Oaks

 

Thousand Oaks, CA

 

154

 

873

 

1992

 

1,828

 

Archstone Thousand Oaks Plaza

 

Thousand Oaks, CA

 

148

 

949

 

2002

 

1,930

 

Archstone Vanoni Ranch

 

Ventura, CA

 

316

 

936

 

2005

 

1,757

 

Subtotal - Southern California

 

 

 

7,195

 

806

 

 

 

$

1,806

 

 

 

 

 

 

 

 

 

 

 

 

 

Non-Core Markets

 

 

 

 

 

 

 

 

 

 

 

Archstone Lexington

 

Flower Mound, TX

 

222

 

983

 

2000

 

$

1,254

 

Archstone Memorial Heights

 

Houston, TX

 

556

 

781

 

1996

 

1,348

 

Boca Town Center(4)

 

Boca Raton, FL

 

252

 

1,064

 

1988

 

1,404

 

Subtotal - Non-Core Markets

 

 

 

1,030

 

894

 

 

 

$

1,342

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Portfolio/Portfolio Average

 

 

 

21,273

 

852

 

 

 

$

2,078

 

 


(1)         Represents the date that construction of the apartment community was completed, and does not consider any subsequent capital expenditures to redevelop the applicable apartment community or for other purposes.

 

(2)         Represents the average monthly revenue per occupied home for the year ending December 31, 2012, or (in the case of communities that Archstone acquired during 2012) for the period of Archstone’s ownership.

 

(3)         This apartment community is owned by a joint venture in which we own a 20.0% interest.

 

(4)         This apartment community is owned by a joint venture in which we own a 28.6% interest.

 

(5)         Interest in this apartment community is subject to a ground lease which expires in November 2060.  The apartment community is under contract for disposition as of the date of this report.

 

(6)         This apartment community is leased to a single master tenant operator under a master lease that expires in July 2017.

 

(7)         This apartment community is managed by a third party and rent per home for 2012 was not available to us as of the date of this report.

 

(8)         This apartment community is owned by a joint venture in which we own a 26.1% interest.

 

(9)         Revenue per Occupied Home is not presented for this apartment community as it was subject to a master lease agreement to one master tenant operator for a portion of 2012, transitioning to conventional operations during the year.

 

(10)  Revenue per Occupied Home is not presented for this apartment community as it is under redevelopment.  This apartment community also includes the ownership of 218 boat slips in the adjoining marina.

 

(11)  Interest in this apartment community is subject to a ground lease which expires in June 2051.

 

5



 

Properties Planned, Under Construction or in Lease-Up

 

The table below provides details with respect to properties under construction and/or in lease-up or planned for development in which we acquired a direct or indirect interest in connection with the Archstone Acquisition.  You should carefully review information about our Development Communities, Redevelopment Communities and Development Rights (as defined in our Annual Report on Form 10-K for the year ended December 31, 2012) under Item 1a., “Risk Factors,” Item 2., “Communities,” and Item 7., “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in that Form 10-K for discussions of the risks associated with our development and redevelopment activity.

 

Property

 

Location

 

Start Date

 

Expected
Apartment
Homes

 

Under Construction and/or in Lease-up(1)

 

 

 

 

 

 

 

Archstone First+M Phase I

 

Washington, DC

 

Q3 2010

 

469

 

Archstone Toscano

 

Houston, TX

 

Q2 2011

 

474

 

Parkland Gardens

 

Arlington, VA

 

Q2 2012

 

228

 

Memorial Heights Phase I

 

Houston, TX

 

Q3 2012

 

318

 

Archstone Berkeley on Addison

 

Berkeley, CA

 

Q3 2012

 

94

 

Archstone West Valley Expansion

 

San Jose, CA

 

Q3 2012

 

84

 

 

 

 

 

 

 

 

 

Land Held, In Planning and Owned(2)

 

 

 

 

 

 

 

Archstone First+M Phase II

 

Washington, DC

 

TBD

 

436

 

Oakwood Toluca Hills Land

 

Toluca Hills, CA

 

TBD

 

150

 

Huntington Beach(3)

 

Huntington Beach, CA

 

TBD

 

384

 

Maple Leaf

 

Cambridge, MA

 

TBD

 

103

 

North Point II

 

Cambridge, MA

 

TBD

 

341

 

 

 

 

 

 

 

 

 

Land Under Option(2)

 

 

 

 

 

 

 

Opera Warehouse

 

San Francisco, CA

 

TBD

 

338

 

Hillwood Square

 

Falls Church, VA

 

TBD

 

462

 

 


(1)         Total expected investment for consolidated apartment communities under construction and/or in lease-up is $490 million with $140 million remaining to invest.

 

(2)         Commencement of construction of projects in planning is subject to regulatory approval, acquisition of financing and/or suitable market conditions.

 

(3)         Land is owned by a consolidated joint venture in which we have a 95.0% interest.

 

Joint Venture Agreements

 

On February 27, 2013, in connection with the Archstone Acquisition, certain of our subsidiaries and subsidiaries of  Equity entered into three limited liability company agreements (collectively, the “Residual JV”) through which they acquired certain assets of Archstone, including Archstone’s interests in certain joint ventures in both the United States as well as in Germany, certain development land parcels, certain loans, subsidiaries which employ certain of Archstone’s employees, insurance policies, various licenses and contracts, and other miscellaneous assets such as commercial leases and corporate office equipment.  The Residual JV plans to divest (to third parties or to us or Equity) or otherwise wind up these assets, subject to market conditions.  The respective percentage interests of our and Equity’s subsidiaries in the Residual JV are 40% and 60%, respectively, and the parties will jointly control the Residual JV.

 

In connection with the Archstone Acquisition, the Residual JV also assumed or succeeded to various liabilities of Archstone, including employment related obligations such as severance and accrued bonuses.  The Residual JV also

 

6



 

assumed or succeeded to responsibility for the defense (or pursuit) of certain existing or future litigation and claims related to Archstone and its affiliates arising from periods before the close of the Archstone Acquisition, subject to certain exceptions for liabilities or claims that principally relate to the physical condition of the assets acquired directly by us or Equity, which generally remain the sole responsibility of us or Equity, as applicable.

 

On February 27, 2013, in connection with the Archstone Acquisition, we entered into a limited liability company agreement with Equity to acquire and own directly and indirectly certain Archstone entities (the “Archstone Legacy Entities”) which hold indirect interests in real estate assets, including certain of the Archstone properties acquired by us as described above.  The Archstone Legacy Entities have outstanding preferred interests held by unrelated third parties with an aggregate liquidation preference of approximately $175,000,000 (including accrued but unpaid distributions), of which approximately $102,000,000 are subject to redemption at the election of the holders of such interests.  One of the Archstone Legacy Entities has previously entered into tax protection arrangements with the holders of certain of the preferred interests, which arrangements may limit for varying periods of time our and Equity’s ability to dispose of the properties held indirectly by the Archstone Legacy Entities or to refinance certain related indebtedness, without making payments to the holders of such preferred interests.  Pursuant to this LLC agreement, we have agreed to bear 40% of the economic cost of these preferred redemption obligations, as well as the tax protection payments that may arise from our disposition or refinancing of properties of the Archstone Legacy Entities that were contributed to a subsidiary that will be consolidated by us for financial reporting purposes, as described below.  As part of the Archstone Acquisition, we and Equity have agreed with Lehman and Archstone to cause the acquired Archstone Legacy Entities to have sufficient funds available to honor their redemption obligations and to make any payments under its tax protection arrangements, when they may become due.  Following the closing transactions, the principal assets indirectly held by the limited liability company that acquired the Archstone Legacy Entities are interests in a subsidiary of us (the “AvalonBay Legacy Subsidiary”) and a subsidiary of Equity, each of which subsidiaries acquired certain properties formerly owned by the Archstone Legacy Entities.  We expect to consolidate, for financial reporting purposes, the assets, liabilities and results of operations of the AvalonBay Legacy Subsidiary.

 

The foregoing description of the agreements described above does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the relevant agreements, copies of which are attached as Exhibits 10.3 — 10.6 hereto.

 

Consideration

 

Pursuant to the Purchase Agreement and separate arrangements between us and Equity governing the allocation of liabilities assumed under the Purchase Agreement, our portion of consideration under the Purchase Agreement was approximately $6.5 billion, consisting of the following:

 

·                  the issuance of 14,889,706 shares of our common stock;

 

·                  a cash payment of approximately $667,000,000;

 

·                  the assumption of indebtedness with a fair value of approximately $4.0 billion, consisting of $3,600,000,000 principal amount of consolidated indebtedness, $200,000,000 principal amount for our proportionate share of debt related to unconsolidated joint ventures and, $200,000,000 representing the amount by which the aforementioned debt fair value exceeds the principal face value;

 

·                  the acquisition with Equity of interests in entities that have preferred units outstanding some of which may be presented for redemption from time to time. Our 40% share of the value of the collective obligation, including accrued dividends on these outstanding Archstone preferred units as of the date of this transaction is approximately $70,000,000 and

 

·                  the assumption with Equity of all other liabilities, known or unknown, of Archstone, other than certain excluded liabilities. We will share in approximately 40% of the cost of these liabilities.

 

7



 

Registration Rights Agreement

 

On February 27, 2013, in connection with the closing of the Archstone Acquisition, we entered into a registration rights agreement with Lehman and Archstone, or the Registration Rights Agreement, pursuant to which we are required to register under the Securities Act of 1933, as amended, or the Securities Act, the resale of the 14,889,706 shares of common stock issued to Archstone as partial consideration for the Archstone Acquisition. Under the Registration Rights Agreement we are obligated to file a resale shelf registration statement by March 8, 2013 pursuant to which, after the expiration of Lehman’s lock-up described below on April 26, 2013, it will be able to sell, generally without restrictions, shares received in the transaction.  We have the right to suspend sales under the shelf registration statement in limited circumstances for up to 90 days in any twelve-month period.  We are obligated to maintain the effectiveness of the registration statement until the earlier of the fifth anniversary of the closing of the Archstone Acquisition or when Lehman owns less than $250,000,000 market value of the shares it originally received under the Purchase Agreement.

 

The Registration Rights Agreement gives Lehman the right to conduct two underwritten offerings of our shares during any twelve-month period.  We are obligated to cooperate with, and assist in, those offerings and to enter into a 30-day lock-up with Lehman’s underwriters.  Following the first anniversary of the closing, we have the right once in any twelve-month period to delay an underwritten offering requested by Lehman so that we may undertake our own underwritten offering.  If we effect an underwritten offering of our shares, Lehman has agreed to enter into a 30-day lock-up with the underwriters so long as it owns over 5% of our outstanding shares.

 

The foregoing description of the Registration Rights Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Registration Rights Agreement, a copy of which is attached as Exhibit 10.1 hereto.

 

Shareholders Agreement

 

On February 27, 2013, in connection with the closing of the Archstone Acquisition, we entered into a shareholders agreement (the “Shareholders Agreement”) , pursuant to which Lehman agreed to a lock-up, starting from the date of the Purchase Agreement and ending on April 26, 2013, with respect to the shares of common stock acquired in connection with the Archstone Acquisition. Under the Shareholders Agreement, so long as Lehman owns more than 5% of our common stock, Lehman has agreed it will not (i) acquire beneficial ownership of any additional shares of our common stock; (ii) participate in any voting or similar arrangement with a third party; (iii) enter into, propose or facilitate any change in control transaction (or other extraordinary transaction involving us); or (iv) otherwise act, alone or in concert with others, to seek to control, or influence, our board of directors or our management or policies.

 

Additionally under the Shareholders Agreement, for one year starting from the date of the closing of the Archstone Acquisition, Lehman will vote all of its shares of our common stock in accordance with the recommendation of our board of directors on any matter other than an extraordinary transaction.  After the first year, and for so long as Lehman holds more than 5% of our common stock, Lehman will vote all of its shares of our common stock (i) in accordance with the recommendations of our board of directors with respect to any election of directors, compensation and equity plan matters, and any amendment to our charter to increase our authorized capital stock; (ii) on all matters proposed by other shareholders, either proportionately in accordance with the votes of the other shareholders or, at its election, in accordance with the recommendation of our board of directors; and (iii) on all other matters, in its sole and absolute discretion.

 

The foregoing description of the Shareholders Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Shareholders Agreement, a copy of which is attached as Exhibit 10.2 hereto.

 

Prior to the issuance of our shares of common stock to Archstone, our board of directors waived the stock ownership limit in our charter, which generally prohibits a stockholder from holding more than 9.8% of the issued and outstanding shares of any class or series of our stock.  The waiver permits Lehman to hold the 14,889,706 shares of our common stock received in the Archstone Acquisition. Our board of directors granted this waiver based on the belief that such waiver will not jeopardize our ability to qualify as a REIT.

 

8



 

Federal National Mortgage Association Master Credit Facility Agreement and Related Notes

 

On February 27, 2013, subsidiaries of the Company entered into a Master Credit Facility Agreement and related notes with Federal National Mortgage Association (“Fannie Mae”) pursuant to which certain of the Company’s subsidiaries assumed approximately $2,270,000,000 of Archstone’s indebtedness with Fannie Mae and modified the terms of such indebtedness (the “Fannie Mae Loan”).  As assumed and modified, the Fannie Mae Loan is divided into three separate loan pools which we refer to as Pools 2, 6 and 9.  The properties securing Pools 2 and 6 are cross-defaulted but not cross-collateralized, and Pool 9 was repaid in its entirety at closing.  See Item 2.03 below for additional information regarding the Fannie Mae Loan and the related loan pools.

 

The foregoing description of the Fannie Mae Loan does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Fannie Mae Loan, a copy of which is attached as Exhibit 10.7 hereto.

 

ITEM 2.03  CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.

 

As part of the Archstone Acquisition, on February 27, 2013, we assumed $3,597,000,000 principal amount of Archstone’s existing indebtedness.  Concurrent with the closing of the Archstone Acquisition we repaid $1,562,000,000 principal amount of this outstanding indebtedness.  Principal amounts of consolidated indebtedness assumed and repaid are detailed further in the following table (dollars in thousands).

 

Community / Debt Facility

 

Stated Interest
Rate

 

Principal Final
Maturity Date

 

Principal Balance
Assumed 
(1)

 

Principal Repayments
at Assumption

 

Net Principal Balance
Assumed 
(1)

 

 

 

 

 

 

 

 

 

 

 

 

 

Tax-exempt bonds

 

 

 

 

 

 

 

 

 

 

 

Fixed Rate

 

 

 

 

 

 

 

 

 

 

 

Meadowbrook

 

4.61

%

Nov-2036

 

$

62,200

 

$

 

$

62,200

 

Variable Rate

 

 

 

 

 

 

 

 

 

 

 

Clinton

 

SIFMA + 1.53

%

Nov-2038

 

268,500

 

 

 

 

268,500

 

Midtown West

 

SIFMA + 1.13

%

May-2029

 

100,500

 

 

100,500

 

San Bruno

 

SIFMA + 1.35

%

Dec-2037

 

64,450

 

 

64,450

 

Calabasas

 

SIFMA + 1.48

%

Apr-2038

 

44,410

 

 

44,410

 

 

 

 

 

 

 

540,060

 

 

540,060

 

Conventional loans

 

 

 

 

 

 

 

 

 

 

 

Fixed Rate

 

 

 

 

 

 

 

 

 

 

 

Fannie Mae Pool 6 (2)

 

6.19

%

Nov-2015

 

940,923

 

443,000

 

497,923

 

Fannie Mae Pool 2 (2)

 

6.26

%

Nov-2017

 

692,192

 

 

692,192

 

First and M

 

5.57

%

May-2053

 

128,826

 

 

128,826

 

San Bruno II

 

5.37

%

Apr-2021

 

31,700

 

 

31,700

 

Meadowbrook

 

4.70

%

Nov-2036

 

22,665

 

 

22,665

 

Lexington

 

5.55

%

Mar-2016

 

16,984

 

 

16,984

 

 

 

 

 

 

 

1,833,290

 

443,000

 

1,390,290

 

Variable Rate

 

 

 

 

 

 

 

 

 

 

 

Fannie Mae Pool 9

 

LIBOR + 1.27

%

Nov-2014

 

636,756

 

636,756

 

 

Freddie Mac Pool

 

LIBOR + 0.96

%

Nov-2014

 

270,943

 

270,943

 

 

South San Francisco

 

DMBS + 1.00

%

Apr-2013

 

76,706

 

76,706

 

 

Calabasas

 

DMBS + 1.44

%

Aug-2018

 

57,472

 

 

57,472

 

San Bruno III

 

LIBOR + 2.60

%

May-2013

 

47,000

 

 

47,000

 

Wheaton Station

 

DMBS + 1.00

%

Apr-2013

 

44,539

 

44,539

 

 

La Mesa

 

DMBS + 1.00

%

Apr-2013

 

24,755

 

24,755

 

 

Parkland Gardens

 

LIBOR + 2.25

%

May-2017

 

18,176

 

18,176

 

 

Toscano

 

LIBOR + 6.00

%

May-2016

 

42,805

 

42,805

 

 

Memorial Heights

 

LIBOR + 2.50

%

May-2017

 

4,806

 

4,806

 

 

 

 

 

 

 

 

1,223,958

 

1,119,486

 

104,472

 

Total Indebtedness

 

 

 

 

 

$

3,597,308

 

$

1,562,486

 

$

2,034,822

 

 


(1) Balances are for consolidated debt assumed and do not include our share of the principal amount of debt held by unconsolidated joint ventures of approximately $200 million.  Balances also do not consider amounts held in principal reserve funds that were received by the Company, and are held for the repayment for the respective borrowing.

 

(2) Borrowings are cross-defaulted.

 

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In addition to the assumed consolidated indebtedness discussed above, as disclosed in footnote 5 to the table detailing the operating communities we acquired as part of the Archstone Acquisition in this report, two of the consolidated operating communities are subject to ground leases that expire in November 2060.  We expect to sell these communities in first quarter of 2013.

 

ITEM 3.02  UNREGISTERED SALES OF EQUITY SECURITIES.

 

The information set forth above in “Item 1.01 — Entry into a Material Definitive Agreement” and “Item 2.01 — Completion of Acquisition or Disposition of Assets” is incorporated herein by reference.  In connection with the Archstone Acquisition, we issued 14,889,706 shares of our common stock to Archstone or its successors, valued at $1.88 billion as of the market’s close on February 27, 2013.   The issuance of our common stock pursuant to the Purchase Agreement as described above was not registered under the Securities Act, in reliance upon the exemption from registration provided by Section 4(2) thereof for transactions not involving a public offering.  We have agreed to register the resale of these shares under the terms of the Registration Rights Agreement, as described above.

 

ITEM 7.01 REGULATION FD DISCLOSURE.

 

On February 27, 2013, we issued a press release announcing the closing of the Archstone Acquisition. A copy of our press release is furnished as Exhibit 99.1 and is incorporated herein by reference.

 

The information disclosed under this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and shall not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing.

 

ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.

 

(a)         Financial Statements of Businesses Acquired

 

The financial statements required to be filed pursuant to this Item 9.01 have been previously filed and are incorporated herein by reference to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 26, 2013.

 

(b)         Pro Forma Financial Information.

 

The pro forma financial information required by this Item 9.01 is not being filed herewith. It will be filed by amendment to this Current Report on Form 8-K not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.

 

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(d) Exhibits.

 

The Exhibit Index appearing immediately after the signature page of this Form 8-K is incorporated herein by reference.

 

FORWARD-LOOKING STATEMENTS

 

This report contains “forward-looking statements” as that term is defined under the Private Securities Litigation Reform Act of 1995. You can identify forward-looking statements by our use of the words “believe,” “expect,” “anticipate,” “intend,” “estimate,” “assume,” “project,” “plan,” “may,” “shall,” “will” and other similar expressions in this press release, that predict or indicate future events and trends and that do not report historical matters.

 

Forward-looking statements or forecasts relating to the business, prospects, operating statistics or financial results that relate to or may be expected to result from the Archstone Acquisition are based on expectations, forecasts and assumptions that are inherently speculative and are subject to substantial risks and uncertainties, many of which we cannot predict with accuracy and some of which we may not have anticipated. As a result, the actual operating statistics and financial results that relate to or may be expected to result from the Archstone Acquisition may differ materially from the Company’s forecasts. Risks, uncertainties and other factors related to the Archstone Acquisition that might cause such differences include, among other things, the following: we may not be able to integrate the assets and operations acquired in the Archstone Acquisition in a manner consistent with our assumptions and/or we may fail to achieve expected efficiencies and synergies; we may encounter liabilities related to the Archstone Acquisition for which we may be responsible that were unknown to us at the time we agreed to the Archstone Acquisition or at the time of this report; and our assumptions concerning risks relating to our lack of control of joint ventures and our ability to successfully dispose of certain assets may not be realized.

 

We do not undertake a duty to update these forward-looking statements, and therefore they may not represent our estimates and assumptions after the date on which this report was filed. You should not rely on forward-looking statements because they involve known and unknown risks, uncertainties and other factors, some of which are beyond our control, and which may cause our actual results, performance or achievements to differ materially from the anticipated future results, performance or achievements expressed or implied by these forward-looking statements. In addition to the factors referred to above, you should carefully review the discussion in our Annual Report on Form 10-K for the year ended December 31, 2012, filed with the Securities and Exchange Commission on February 22, 2013, under Item 1a., “Risk Factors,”  and the other disclosures elsewhere in the Form 10-K and our subsequent reports on Form 10-Q and 8-K and other filings with the SEC for further discussion of additional risks and uncertainties associated with our business and these forward-looking statements.

 

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SIGNATURES

 

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.

 

 

March 5, 2013

 

 

By:

/s/ Thomas J. Sargeant

 

Name:

Thomas J. Sargeant

 

Title:

Chief Financial Officer

 

12



 

EXHIBIT INDEX

 

Exhibit No.

 

Description

10.1

 

Registration Rights Agreement, dated February 27, 2013, by and between Lehman Brothers Holdings Inc. and AvalonBay Communities, Inc.

 

 

 

10.2

 

Shareholders Agreement, dated February 27, 2013, by and among AvalonBay Communities, Inc., Archstone Enterprise LP and Lehman Brothers Holdings Inc.

 

 

 

10.3

 

Archstone Residual JV, LLC Limited Liability Company Agreement

 

 

 

10.4

 

Archstone Parallel Residual JV, LLC Limited Liability Company Agreement

 

 

 

10.5

 

Archstone Parallel Residual JV 2, LLC Limited Liability Company Agreement

 

 

 

10.6

 

Legacy Holdings JV, LLC Limited Liability Company Agreement

 

 

 

10.7

 

Master Credit Facility Agreement, dated February 27, 2013, by and among Federal National Mortgage Association and the parties named therein.

 

 

 

99.1

 

Press Release dated February 27, 2013

 

13