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Exhibit 1
JDN REALTY CORPORATION
(A MARYLAND CORPORATION)
443,623 Shares of Common Stock (Par Value $.01 Per Share)
TERMS AGREEMENT
March 25, 1998
To: JDN Realty Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the JDN Realty Corporation (a Maryland
corporation) - Common Stock, Common Stock Warrants, Preferred Stock and Debt
Securities Underwriting Agreement, dated July 30, 1997 (the "Underwriting
Agreement"), a copy of which is attached hereto as Annex A. This Agreement is
the Terms Agreement referred to in the Underwriting Agreement. X.X. Xxxxxxxx &
Co., L.L.C. (the "Underwriter") offers to purchase, on and subject to the terms
and conditions set forth herein or incorporated by reference herein to the
Underwriting Agreement, from JDN Realty Corporation, a Maryland corporation (the
"Company"), the following securities of the Company (the "Underwritten
Securities") on the following terms:
Title of Underwritten Securities: Common Stock, par value $.01 per share.
Number of Initial Underwritten Securities
to be issued: 443,623 shares.
Public offering price: $32.6291 per share.
Purchase price: $32.1219 per share.
Number of Option Underwritten Securities,
if any, that may be purchased by the
Underwriter: None.
Delayed Delivery Contracts: Not authorized.
Additional co-managers, if any: None.
Other Terms (Lock Up): None.
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Closing date and location: March 30, 1998, 8:30 a.m., Chicago
time, Xxxxxxx and Xxxxxx, 000 X.
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
All the provisions contained in the Underwriting Agreement are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. The Underwriter is deemed to have been an original
signatory to the Underwriting Agreement such that the terms and conditions of
the Underwriting Agreement shall inure to the benefit of and be legally binding
on and enforceable by each of the parties hereto.
In addition, the Underwriting Agreement is hereby amended as follows:
(i) by deleting the reference to "$400 million" in the first sentence of the
first paragraph thereof and by inserting "$600 million" in lieu thereof; (ii) by
deleting the reference to "(No. 333-22399)" in the first sentence of the eighth
paragraph thereof and by inserting "(No. 333-38611)" in lieu thereof; (iii) by
deleting the phrase, "prior to the execution of this Underwriting Agreement" in
the 19th line of the eighth paragraph thereof and by inserting "as of the date
of such Registration Statement or Prospectus, as the case may be, and all
references to the "Prospectus" shall be deemed to include all documents
incorporated by reference therein prior to the termination of the offering of
the Underwritten Securities by the Underwriter" in lieu thereof; (iv) by
deleting every reference to "Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated" and "Xxxxxxx Xxxxx" and by inserting "X.X. Xxxxxxxx & Co.
L.L.C." in lieu thereof; (v) by deleting the reference in the first sentence of
the first paragraph of Section 2(c) to "Xxxxx & Xxxxxxx L.L.P., Columbia Square,
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000" and by inserting "Xxxxxxx
and Xxxxxx, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000" in lieu thereof; (vi)
by deleting every reference to "Xxxxx & Xxxxxxx L.L.P." and by inserting
"Xxxxxxx and Xxxxxx" in lieu thereof; (vii) by deleting the references to
"signed" in the third and sixth lines of Paragraph (c) of Section 3 and by
inserting "conformed" in lieu thereof; (viii) by deleting Section 5(c) in its
entirety and inserting in lieu thereof the following: "At the Closing Time, the
Underwriter shall have received from Xxxxxxx and Xxxxxx, counsel for the
Underwriter, such opinion or opinions, dated the Closing Time with respect to
the incorporation of the Company, the validity of the Underwritten Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriter may reasonably require."; (ix) by deleting the words in the second
sentence of Section 11 "Xxxxxxx Xxxxx at World Financial Center, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 Attention: Xxxxxx Xxxxxxx, Director, with a copy
to Xxxxx & Xxxxxxx L.L.P., Columbia Square, 000 Xxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-0000, Attention: J. Xxxxxx Xxxxxxx, Xx." and by inserting
the words "X.X. Xxxxxxxx & Co., L.L.C., X.X. Xxxxxxxx Financial Center, 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxxx Xxxxxxx-Xxxxx,
with a copy to Xxxxxxx and Xxxxxx, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxxx X. Xxxx" in lieu thereof; and (x) by deleting the
words in the second sentence of Section 11 "3340 Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx" and by inserting the words "359 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx, 00000" in lieu thereof.
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Section 1 of the Underwriting Agreement is hereby amended as follows:
(i) by deleting Paragraph (4) ("Financial Statements") in its
entirety and inserting in lieu thereof the following:
"(4) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement and
the Prospectus, together with the related schedules and notes, as well
as those financial statements, schedules and notes of any other entity
included in the Registration Statement and the Prospectus, present
fairly the consolidated financial position of the Company and its
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries, or such other entity, as the case may
be, for the periods specified; the combined statements of revenue and
certain expenses of certain properties acquired or to be acquired by
the Company included in the Registration Statement and the Prospectus,
together with the related notes, present fairly the combined revenues
and expenses of such properties at the dates indicated and are in
conformity with the requirements of Rule 3-14 of Resolution S-X; such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved; the supporting schedules, if any,
included in the Registration Statement and the Prospectus, when
considered in relation to the basic financial statements taken as a
whole, present fairly in accordance with GAAP the information required
to be stated therein; any selected financial data and the summary
financial information included in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus;
and any pro forma consolidated financial statements of the Company and
its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, with the exception of adjustment (6) in footnote 14 to the
Company's financial statements for the year ending and as of December
31, 1994, to the extent such adjustment affects the Company's 1994 pro
forma financial information included in the Registration Statement and
the Prospectus, and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. No
other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the
Prospectus under the 1933 Act or the 1933 Act Regulations.";
(ii) by deleting Paragraph (7) ("Good Standing of Subsidiaries") in
its entirety and inserting in lieu thereof the following:
"(7) Good Standing of Significant Subsidiaries. Each
significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933
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Act), if any, and JDN Development Company, Inc. (each, a "Significant
Subsidiary") has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its formation, has the
requisite power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect; except as
stated in the Prospectus, all of the issued and outstanding equity
securities of each Significant Subsidiary have been duly authorized
and are validly issued, fully paid and non-assessable and are owned by
the Company, directly or through subsidiaries (except in the case of
JDN Development Company, Inc., the outstanding voting stock of which
is owned 99% by J. Xxxxxx Xxxxxxx and 1% by the Company, and the
outstanding non-voting stock of which is owned 100% by the Company),
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Significant Subsidiary was issued in violation of
preemptive or other similar rights of any security holder of such
Significant Subsidiary.";
(iii) by deleting Paragraph (8) ("Capitalization.") in its entirety
and inserting in lieu thereof the following:
(8) Capitalization. The Company has authorized, issued and
outstanding capital stock as set forth in the Company's Annual Report
on Form 10-K filed with the Commission for the period ended December
31, 1997 (except for any subsequent issuances of Common Stock pursuant
to Terms Agreements dated February 10, 1998 and February 23, 1998, and
pursuant to the Company's Dividend Reinvestment and Stock Purchase
Plan, 1995 Employee Stock Purchase Plan, 1993 Incentive Stock Plan and
1993 Non-Employee Director Stock Option Plan). Such shares of capital
stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital
stock were issued in violation of preemptive or other similar rights of
any securityholder of the Company.
(iv) by deleting the last four lines of Paragraph (23) ("Absence of
Further Requirements") and inserting in lieu thereof the following:
"except for the registration of the Underwritten
Securities under the 1933 Act or under state securities laws,
compliance with the listing requirements of the New York Stock
Exchange, or approval of the National Association of Securities
Dealers, Inc., if applicable, all of which have been or will be
effected in accordance with this Agreement.";
(v) by deleting the second sentence of Paragraph (26) ("Title To
Property") in its entirety and inserting in lieu thereof the following:
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"Except as described in or incorporated by reference
into the Registration Statement or the Prospectus, and with respect to
other Properties that, singly or in the aggregate, did not account for
more than either (i) 10 percent of the total assets on the Company's
December 31, 1997 consolidated balance sheet, or (ii) 10 percent of the
Company's total revenues on the Company's consolidated statement of
income for the year ended December 31, 1997, no person has an option or
right of first refusal to purchase all or part of any Property or any
interest therein":
(vi) by deleting the third sentence of Paragraph (27) ("Leases") in
its entirety and inserting in lieu thereof the following:
"Except as disclosed in or incorporated by reference
into the Prospectus and except as would not have a Material Adverse
Effect, the Company has no knowledge that any tenant which is
responsible for aggregate annualized base rent in excess of $1,200,000
under all of its leases at the Properties is not financially capable of
performing its obligations thereunder.";
(vii) by deleting in the 31st line of Paragraph (30) ("Environmental
Laws") the word "and" after the comma and before the parenthetical "(4)," and by
adding in the 34th line after the comma and before the word "the" the following:
"and (5) a corrective action plan required by the
State of Georgia (relating to soil and ground water affected by an
underground storage tank release) of the owner of the Golden Gallon
site near the Company's Lafayette, Georgia property,"
(viii) by adding in the eighth line of Paragraph (32) ("Tax
Compliance") after the word "paid" and before the comma the following:
"except where failure to pay would not result in a
Material Adverse Effect."
The Company represents and warrants to the Underwriter that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement, as modified in the preceding paragraph, are accurate as
though expressly made at and as of the date hereof.
The parties acknowledge that the information set forth in the last
paragraph on the front cover page and in the second paragraph under the caption
"Underwriting" in the Prospectus Supplement dated March 25, 1998 constitutes the
only information furnished by the Underwriter to the Company for inclusion in
the Registration Statement, any preliminary prospectus, and the Prospectus.
Terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Underwriting Agreement.
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Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
X.X. XXXXXXXX & CO., L.L.C.
By /s/ Xxxxxxxxx Xxxxxxx-Xxxxx
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Name: Xxxxxxxxx Xxxxxxx-Xxxxx
Title: Managing Director
Accepted:
JDN REALTY CORPORATION
By /s/ J. Xxxxxx Xxxxxxx
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Name: J. Xxxxxx Xxxxxxx
Title: Chairman & CEO
