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EXHBIT 1
JDN REALTY CORPORATION
(a Maryland corporation)
900,000 Shares of Common Stock (Par Value $.01 Per Share)
TERMS AGREEMENT
February 10, 1998
To: JDN Realty Corporation
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
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. SunTrust
Equitable Securities Corporation (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: 900,000 shares.
PUBLIC OFFERING PRICE: $33.25 per share.
PURCHASE PRICE: $32.25 per share.
NUMBER OF OPTION UNDERWRITTEN
SECURITIES, IF ANY, THAT MAY BE
PURCHASED BY THE UNDERWRITER: 135,000 shares.
DELAYED DELIVERY CONTRACTS: Not authorized.
ADDITIONAL CO-MANAGERS, IF ANY: None.
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OTHER TERMS (LOCK-UP): In accordance with Section 3(k) of the Underwriting
Agreement, without the written consent of the
Underwriter (which consent shall not be unreasonably
withheld), the Company shall be restricted from
selling shares of Common Stock, as set forth in said
Section 3(k), for a period of 30 days from the date
hereof, and the executive officers and directors of
the Company will likewise be so restricted.
Notwithstanding the foregoing, during such period and
without obtaining the Underwriter's consent, (a) the
Company may issue, sell, offer to sell, grant any
option for the sale of or otherwise dispose of shares
of Common Stock in connection with (i) the Company's
Dividend Reinvestment and Stock Purchase Plan, (ii)
the Company's Employee Stock Purchase Plan, (iii) the
Company's 1993 Incentive Stock Plan, (iv) the
Company's Non-Employee Director Stock Option Plan,
and (v) issuances, sales and deliveries to any
underwriter for re-sale to one or more unit
investment trusts, and (b) the executive officers and
directors of the Company may make gifts or charitable
contributions of the Company's Common Stock if the
recipient of such gift or charitable contribution
agrees to be bound by the foregoing restrictions.
CLOSING DATE AND LOCATION: February 17, 1998, 10:00 a.m., New York City time,
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000.
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 every reference to "Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated" and "Xxxxxxx Xxxxx" and by inserting "SunTrust Equitable
Securities Corporation" in lieu thereof; (iv) 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,
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XX 00000" and by inserting "Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000" in lieu thereof; (v) by deleting every reference to "Xxxxx
& Xxxxxxx L.L.P." and by inserting "Stroock & Stroock & Xxxxx LLP" in lieu
thereof; (vi) 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; (vii) by deleting the reference in Section 5(c) to "the District of
Columbia" and by inserting "the State of New York" in lieu thereof; and (viii)
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 of:
Xxxxxx Xxxxxxx, Director, with a copy to Xxxxx & Xxxxxxx L.L.P., Columbia
Square, 000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000-0000, Attention: J.
Xxxxxx Xxxxxxx, Xx." and by inserting the words "SunTrust Equitable Securities
Corporation, 000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Xxxx X. Xxxxx, Xx., Managing Director, with a copy to Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Xxxxx X. Xxxxxxxxx" in lieu thereof.
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 statements of operations,
shareholders' equity 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; 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
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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 included in the Company's Form 10-K for the
year ending December 31, 1996, 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.";
(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 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 securityholder of such Significant
Subsidiary.";
(iii) 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
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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.";
(iv) by deleting the second sentence of Paragraph (26)
("Title to Property") in its entirety;
(v) by deleting the third sentence of Paragraph (27)
("Leases") in its entirety and inserting in lieu thereof the following:
"Except as disclosed or incorporated by reference in
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."
(vi) 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,".
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 third paragraph under the caption
"Underwriting" in the Prospectus Supplement dated February 10, 1998 constitutes
the only information furnished by the Underwriters 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 no later than 5:00 p.m., New York City time,
on February 10, 1998 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Managing Director
Accepted:
JDN REALTY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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