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EXHIBIT 1
JDN REALTY CORPORATION
(A MARYLAND CORPORATION)
598,131 Shares of Common Stock (Par Value $.01 Per Share)
TERMS AGREEMENT
February 18, 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. X.X. Xxxxxxx &
Sons, Inc. (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: 598,131 shares.
Public offering price: $32.1019 per share.
Purchase price: $31.7675 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.
Closing date and location: February 23, 1998, 8:30 a.m., Chicago time, Xxxxxxx and
Xxxxxx, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
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Closing date and location: February 23, 1998, 8:30 a.m.,
Chicago time, Xxxxxxx and
Xxxxxx, III 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. Xxxxxxx & Sons,
Inc." 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."; and (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. Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Syndicate, with a copy to Xxxxxxx and Xxxxxx, 000 X.
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxx" in lieu
thereof.
Section I of the Underwriting Agreement is hereby amended as follows:
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(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 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 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. 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 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
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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 Quarterly
Report on Form 10-Q filed with the Commission for the period ended
September 30, 1997 (except for any subsequent issuances of Common Stock
pursuant to Terms Agreements dated November 12, 1997 and February 10,
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:
"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
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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,"
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 February 18, 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. XXXXXXX & SONS, INC.
By /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Director
Accepted:
JDN REALTY CORPORATION
By /s/ J. Xxxxxx Xxxxxxx
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Name: J. Xxxxxx Xxxxxxx
Title: Chairman and CEO
