-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D6TMwWB9AFZ/KseGwxrAmC7v7KJnZ2O6wBq9rm53LZ1RP5ukJ88jqE4Q6jCEShLL e4oaEsEP/V1pLV1OWpiD4A== 0000950144-98-003672.txt : 19980331 0000950144-98-003672.hdr.sgml : 19980331 ACCESSION NUMBER: 0000950144-98-003672 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980330 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980330 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: JDN REALTY CORP CENTRAL INDEX KEY: 0000916836 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 581468053 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12844 FILM NUMBER: 98579590 BUSINESS ADDRESS: STREET 1: 3340 PEACHTREE RD NE STREET 2: STE 1530 CITY: ATLANTA STATE: GA ZIP: 30326 BUSINESS PHONE: 4042623252 MAIL ADDRESS: STREET 1: 3340 PEACHTREE RD NE STREET 2: STE 1530 CITY: ATLANTA STATE: GA ZIP: 30326 8-K 1 JDN REALTY CORPORATION FORM 8-K 1 ================================================================================ 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): MARCH 30, 1998 (MARCH 25, 1998) ------------------------------ JDN REALTY CORPORATION (Exact Name of Registrant as Specified in Its Charter) MARYLAND 1-12844 58-1468053 (State or Other (Commission File (I.R.S. Employer Jurisdiction of Number) Identification Incorporation) Number) 359 EAST PACES FERRY ROAD SUITE 400 ATLANTA, GEORGIA 30305 (Address of Principal Executive Offices) (Zip Code) (404) 262-3252 (Registrant's Telephone Number, including Area Code) NOT APPLICABLE (Former Name) ================================================================================ 2 ITEM 5. OTHER EVENTS. On March 25, 1998, the Company entered into a terms agreement with J.C. Bradford & Co., L.L.C. (the "Underwriter") relating to the sale by the Company to the Underwriter of 443,623 shares of the Company's common stock, $.01 par value per share (the "Common Stock"), at a price of $32.1219 per share, resulting in aggregate proceeds to the Company of $14,250,014 before payment of offering expenses by the Company. The related Underwriting Agreement, dated July 30, 1997, was filed as an exhibit to the Company's Current Report on Form 8-K filed on August 1, 1997. This offering closed on March 30, 1998. The Underwriter purchased the Common Stock for resale to the sponsor of Select Real Estate Trust FT 244, a newly formed unit investment trust (the "Trust"), at an aggregate purchase price of $14,475,003, resulting in an aggregate underwriting discount of $224,989. The sponsor intends to deposit the shares of Common Stock into the Trust in exchange for units in the Trust. The initial units of the Trust will be sold to investors at an initial public offering price based on the net asset value of securities in the Trust; for purposes of this calculation, the value of the Common Stock was $33.8125, the last reported sale price of the Common Stock on the New York Stock Exchange on March 25, 1998. A registration statement relating to the Common Stock has been filed with the Securities and Exchange Commission and was declared effective on October 30, 1997. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (C) EXHIBITS.
Exhibit No. Description ---------- ----------- 1 Terms Agreement dated March 25, 1998 by and between the Company and J.C. Bradford & Co., L.L.C. and related Underwriting Agreement (Underwriting Agreement filed as Exhibit 1.1 to the Company's Current Report on Form 8-K filed on August 1, 1997 and incorporated herein by reference) 5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company 8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company 23 Consent of Waller Lansden Dortch & Davis, A Professional Limited Liability Company (included in Exhibits 5 and 8)
3 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. JDN REALTY CORPORATION By: /s/ William J. Kerley ----------------------------------- William J. Kerley Chief Financial Officer Date: March 30, 1998 4 INDEX TO EXHIBITS
Exhibit No. Description ----------- ----------- 1 Terms Agreement dated March 25, 1998 by and between the Company and J.C. Bradford & Co., L.L.C. and related Underwriting Agreement (Underwriting Agreement filed as Exhibit 1.1 to the Company's Current Report on Form 8-K filed on August 1, 1997 and incorporated herein by reference) 5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company 8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company 23 Consent of Waller Lansden Dortch & Davis, A Professional Limited Liability Company (included in Exhibits 5 and 8)
EX-1 2 TERMS AGREEMENT 1 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 359 East Paces Ferry Road Suite 400 Atlanta, Georgia 30305 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. J.C. Bradford & 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.
2 Closing date and location: March 30, 1998, 8:30 a.m., Chicago time, Chapman and Cutler, 111 W. Monroe Street, Chicago, Illinois 60603.
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 "Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated" and "Merrill Lynch" and by inserting "J.C. Bradford & 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 "Hogan & Hartson L.L.P., Columbia Square, 555 Thirteenth Street, N.W., Washington, D.C. 20004" and by inserting "Chapman and Cutler, 111 W. Monroe Street, Chicago, Illinois 60603" in lieu thereof; (vi) by deleting every reference to "Hogan & Hartson L.L.P." and by inserting "Chapman and Cutler" 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 Chapman and Cutler, 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 "Merrill Lynch at World Financial Center, North Tower, New York, New York 10281-1201 Attention: Tjarda Clagett, Director, with a copy to Hogan & Hartson L.L.P., Columbia Square, 555 Thirteenth Street, N.W., Washington, D.C. 20004-1109, Attention: J. Warren Gorrell, Jr." and by inserting the words "J.C. Bradford & Co., L.L.C., J.C. Bradford Financial Center, 330 Commerce Street, Nashville, Tennessee 37201, Attention: Catherine Gemmato-Smith, with a copy to Chapman and Cutler, 111 W. Monroe Street, Chicago, Illinois 60603, Attention: Jonathan A. Koff" in lieu thereof; and (x) by deleting the words in the second sentence of Section 11 "3340 Peachtree Road, Suite 1530, Atlanta, Georgia" and by inserting the words "359 East Paces Ferry Road, Suite 400, Atlanta, Georgia, 30305" in lieu thereof. -2- 3 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 -3- 4 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. Donald Nichols 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: -4- 5 "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. -5- 6 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, J.C. BRADFORD & CO., L.L.C. By /s/ Catherine Gemmato-Smith ------------------------------ Name: Catherine Gemmato-Smith Title: Managing Director Accepted: JDN REALTY CORPORATION By /s/ J. Donald Nichols ------------------------------- Name: J. Donald Nichols Title: Chairman & CEO EX-5 3 OPINION OF WALLER LANSDEN DORTCH & DAVIS 1 Exhibit 5 WALLER LANSDEN DORTCH & DAVIS A PROFESSIONAL LIMITED LIABILITY COMPANY NASHVILLE CITY CENTER 511 UNION STREET, SUITE 2100 POST OFFICE BOX 198966 NASHVILLE, TENNESSEE 37219-8966 (615) 244-6380 FACSIMILE 809 SOUTH MAIN STREET (615) 244-6804 P. O. BOX 1035 COLUMBIA, TN 38402-1035 (615) 388-6031 March 30, 1998 JDN Realty Corporation 359 East Paces Ferry Road Suite 400 Atlanta, Georgia 30305 Re: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT (TO THE PROSPECTUS DATED OCTOBER 30, 1997) Ladies and Gentlemen: We are acting as your counsel in connection with the issue and sale of 443,623 shares of common stock, $.01 par value (the "Shares"), by JDN Realty Corporation, a Maryland corporation (the "Company"), to J.C. Bradford & Co., L.L.C. (the "Underwriter"), pursuant to a Registration Statement on Form S-3 (Registration No. 333-38611) (the "Registration Statement"), including the Prospectus dated October 30, 1997 contained therein (the "Prospectus") as supplemented by the Prospectus Supplement dated March 25, 1998 (the "Prospectus Supplement"), a Terms Agreement between the Company and the Underwriter dated March 25, 1998 and the related Underwriting Agreement, dated July 30, 1997 (collectively, the "Underwriting Agreement"). As such counsel and in connection with the foregoing, we have examined and relied upon such records, documents and other instruments as in our judgment are necessary or appropriate in order to express the opinion hereinafter set forth, and have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based upon and subject to the foregoing and such other matters as we have deemed relevant, we are of the opinion that the Shares have been duly authorized by all necessary corporate action and, when delivered and issued upon payment therefor in the manner and on the terms described in the Registration Statement, the Prospectus, the Prospectus Supplement and the Underwriting Agreement, will be validly issued, fully paid and non-assessable. 2 JDN Realty Corporation March 30, 1998 Page 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to Waller Lansden Dortch & Davis, A Professional Limited Liability Company, under the caption "Legal Matters" in the Prospectus and the Prospectus Supplement. Very truly yours, /s/ WALLER LANSDEN DORTCH & DAVIS, A Professional Limited Liability Company EX-8 4 TAX OPINION OF WALLER LANSDEN DORTCH & DAVIS 1 Exhibit 8 WALLER LANSDEN DORTCH & DAVIS A PROFESSIONAL LIMITED LIABILITY COMPANY NASHVILLE CITY CENTER 511 UNION STREET, SUITE 2100 POST OFFICE BOX 198966 NASHVILLE, TENNESSEE 37219-8966 (615) 244-6380 FACSIMILE 809 SOUTH MAIN STREET (615) 244-6804 P. O. BOX 1035 COLUMBIA, TN 38402-1035 (615) 388-6031 March 30, 1998 JDN Realty Corporation 359 East Paces Ferry Road Suite 400 Atlanta, Georgia 30305 RE: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT DATED MARCH 25, 1998 (TO THE PROSPECTUS DATED OCTOBER 30, 1997) Ladies and Gentlemen: We have acted as special tax counsel to JDN Realty Corporation, a Maryland corporation (the "Company"), in connection with the public offering of 443,623 shares of common stock of the Company (the "Shares"), as more fully described in the Company's Prospectus Supplement dated March 25, 1998 (to the Prospectus dated October 30, 1997), included in the Registration Statement on Form S-3 (File No. 333-38611) (the "Registration Statement"). In connection with the public offering of the Shares, you have requested our opinion that the Company qualified as a real estate investment trust ("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code") for its taxable years ended December 31, 1994, December 31, 1995, December 31, 1996 and December 31, 1997 and that its current method of organization and operation will enable it to continue to qualify as a REIT. All capitalized terms in this opinion which are defined in the Registration Statement or the Prospectus Supplement shall have the same respective meanings as set forth in the Registration Statement or the Prospectus Supplement pertaining to the offering of the Shares. In rendering our opinion, we have examined and relied upon the following documents and other materials: 1. Schedules prepared or delivered by officials of the Company setting forth: (a) REIT taxable and gross income for the short taxable year ended December 31, 1994 and for fiscal years ended December 31, 1995, 1996 and 1997, together with a schedule of actual dividends distributed and projected dividends to be distributed in accordance with Code Section 858 and compliance with the distribution requirements of Code Section 857(a); 2 JDN Realty Corporation March 30, 1998 Page 2 (b) Compliance with the applicable REIT ratios or tests for the fiscal years ended December 31, 1994, 1995, 1996 and 1997 and projected compliance with such tests for the fiscal year ending December 31, 1998, including: Income tests: (1) 95% gross income test for the year; (2) 75% gross income test for the year; and (3) 30% gross income test for each year through the fiscal year ending December 31, 1997; and Asset tests: (1) 75% asset test at the end of each quarter through December 31, 1997; (2) 25% asset test at the end of each quarter through December 31, 1997; (3) 10% asset test at the end of each quarter through December 31, 1997; and (4) 5% asset test at the end of each quarter through December 31, 1997. 2. The Company's certificate, dated as of March 30, 1998. In addition, we have examined such additional records, documents, certificates and other instruments and made such investigations of fact and law as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In rendering our opinion, we have relied upon the following representations of the Company. To the extent that the representations of the Company are with respect to matters set forth in the Code or Treasury Regulations, we have discussed with the Company's officers the relevant provisions of the Code, the applicable Treasury Regulations and published administrative interpretations thereof. 1. The common stock of the Company has been since the completion of the initial public offering, and will continue to be beneficially owned by over 100 persons, as defined for purposes of Section 856(a)(5) of the Code; and five or fewer persons have not owned, directly or indirectly under the rules of Section 544 as modified by Section 856(h) of the Code, at any time since the completion of the initial public offering, over 50% in value of the stock of the Company; and no person will own, directly or indirectly, over 8% in number of shares or value of the outstanding stock of the Company; provided, however, that "Excluded Holders" may hold up to the "Excluded Holder Ownership Limit," as such terms are defined in the Company's Charter. 2. The Company has at all times and will continue to comply with any and all procedural requirements for REIT status set forth in Sections 856 through 860 of the Code and the 3 JDN Realty Corporation March 30, 1998 Page 3 regulations thereunder. 3. Additional properties acquired will constitute "real estate assets" and any other investments made by the REIT will be made in a manner to satisfy the asset tests of Section 856(c) of the Code. 4. The income from existing and additional leases entered into or acquired and the income from other investments will not cause the Company to fail to satisfy the income tests of Section 856(c) of the Code. 5. The Company will actually operate in accordance with its past and proposed method of operation as described in its filings with the Securities and Exchange Commission under the Securities Act of 1933 and the Securities Exchange Act of 1934. 6. The Company had no undistributed "C" corporation earnings and profits at December 31, 1994, December 31, 1995, December 31, 1996 or December 31, 1997. 7. The representations contained in the Company's certificate, dated as of March 30, 1998, are accurate. 8. All partnerships in which the Company may have an ownership interest will own only "real estate assets" and cash reserves. All activities of those partnerships will consist of activities permitted to be undertaken by a REIT and income, other than interest income on cash reserves, shall be "rents from real property." 9. Each corporation in which the Company has acquired or acquires an equity interest shall either be a "Qualified REIT Subsidiary" under Section 856(i) of the Code or the Company will not own over 10% of the outstanding voting securities of such corporation or other issuer and the securities owned of any issuer other than a Qualified REIT Subsidiary will not be greater in value than 5% of the value of the total assets of the Company. On the basis of and in reliance on the foregoing, we wish to advise you that under current law, including relevant statutes, regulations and judicial and administrative precedent (which law is subject to change on a retroactive basis), in our opinion: 4 JDN Realty Corporation March 30, 1998 Page 4 (a) the Company was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its taxable years ended December 31, 1994, December 31, 1995, December 31, 1996 and December 31, 1997 and the Company's current organization and method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (b) the discussion in the Company's Form 8-K dated January 26, 1998, incorporated into the Prospectus under the heading "Federal Income Tax and ERISA Considerations" is correct in all material respects and fairly summarizes the federal income tax considerations that are likely to be material to a holder of the Shares. The Company's qualification and taxation as a REIT depend upon the Company's ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code and described in or incorporated by reference into the Registration Statement with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to shareholders, and the diversity of its stock ownership. Waller Lansden Dortch & Davis, A Professional Limited Liability Company will not review the Company's compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of operations of the Company and its subsidiaries, the sources of their income, the nature of their assets, the level of the Company's distributions to shareholders and the diversity of its stock ownership for any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to us under the caption "Legal Matters" in the Prospectus and the Prospectus Supplement. Very truly yours, /s/ WALLER LANSDEN DORTCH & DAVIS, A Professional Limited Liability Company -----END PRIVACY-ENHANCED MESSAGE-----