-----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, DZSv/GhqARtZEA6Ch6ze+mizaxJioQKUPHHrsnLWpwFQeumkxW0Up14Scc1sA0SD q1w0q3X78x1W6wh6bMOlCQ== 0000950144-99-000221.txt : 19990114 0000950144-99-000221.hdr.sgml : 19990114 ACCESSION NUMBER: 0000950144-99-000221 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990113 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990113 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: 99505335 BUSINESS ADDRESS: STREET 1: 359 EAST PACES FERRY ROAD STREET 2: STE 400 CITY: ATLANTA STATE: GA ZIP: 30305 BUSINESS PHONE: 4042623252 MAIL ADDRESS: STREET 1: 3359 EAST PACES FERRY RD STREET 2: STE 400 CITY: ATLANTA STATE: GA ZIP: 30305 8-K 1 JDN REALTY CORPORATION 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): JANUARY 13, 1999 ------------------------------ 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. Common Stock Offering. On January 8, 1999, the Company entered into a terms agreement with BT Alex. Brown Incorporated (the "Underwriter") relating to the sale by the Company to the Underwriter of 500,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock"), at a price of $22.25 per share. 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 January 13, 1999. A registration statement relating to the Common Stock has been filed with the Securities and Exchange Commission (the "Commission") and was declared effective on October 30, 1997. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (C) EXHIBITS. Exhibit No. Description ----------- ----------- 1 Terms Agreement dated January 8, 1999 by and between the Company and BT Alex. Brown Incorporated, 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: January 12, 1999 4 INDEX TO EXHIBITS Exhibit No. Description ----------- ----------- 1 Terms Agreement dated January 8, 1999 by and between the Company and BT Alex. Brown Incorporated, 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) 500,000 Shares of Common Stock, par value $.01 per share TERMS AGREEMENT Dated: January 8, 1999 To: JDN Realty Corporation 359 E. Paces Ferry Road Suite 400 Atlanta, GA 30305 Ladies and Gentlemen: We (the "Underwriters") understand that JDN Realty Corporation (the "Company") proposes to issue and sell shares of Common Stock, par value $.01 per share (the "Common Stock" or "Underwritten Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, the Underwriters offer to purchase the Initial Underwritten Securities (as defined in the Underwriting Agreement referred to below) set forth below at the purchase price per share of Common Stock set forth below.
Underwriter Number of Shares of Initial Underwritten Securities BT Alex. Brown Incorporated........................................................500,000 Total.............................................................500,000
The Underwritten Securities shall have the following terms: TITLE OF SECURITIES: Common Stock NUMBER OF INITIAL UNDERWRITTEN SECURITIES: 500,000 PAR VALUE: $.01 per share of Common Stock PUBLIC OFFERING PRICE PER SHARE OF COMMON STOCK: $22.25 PURCHASE PRICE PER SHARE OF COMMON STOCK: $21.805 NUMBER OF OPTION UNDERWRITTEN SECURITIES, IF ANY, THAT MAY BE PURCHASED BY THE UNDERWRITERS: None DELAYED DELIVERY CONTRACTS: Not authorized CLOSING DATE AND LOCATION: January 13, 1999, Hogan & Hartson L.L.P., Columbia Square, 555 Thirteenth Street, N.W., Washington, DC 20004 2 All the provisions contained in the document attached as Annex A hereto entitled "JDN Realty Corporation (a Maryland corporation) -- Common Stock, Common Stock Warrants, Preferred and Debt Securities -- Underwriting Agreement," dated July 30, 1997 (the "Underwriting Agreement"), are hereby incorporated by reference in their entirety herein and, subject to any modifications to such terms set forth below, 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. In furtherance of the foregoing, certain provisions of the Underwriting Agreement hereby are modified as follows: (a) by deleting the reference to "$400 million" in the first paragraph thereof and by inserting "$600 million" in lieu thereof; (b) by deleting the reference to "(No. 333-22339)" contained in the first sentence of the eighth paragraph thereof in its entirety and to insert "(No. 333-38611, or any successor thereto)" in lieu thereof; (c) 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 Underwriters" in lieu thereof; (d) by deleting each reference to "Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated" and "Merrill Lynch" therein and by inserting "BT Alex. Brown Incorporated" in lieu thereof; (e) by deleting Paragraph (4) ("Financial Statements") of Section 1 thereof in its entirety and by 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 Regulation S-X promulgated under the 1933 Act; 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 -2- 3 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, 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; (f) by deleting Paragraph (7) ("Good Standing of Subsidiaries") of Section 1 thereof in its entirety and by 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 (each, a "Significant Subsidiary") has been duly organized and is validly existing and 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 to 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, the outstanding voting common stock of which is owned 99% by J. Donald Nichols and 1% by the Company, and the outstanding non-voting common 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; (g) by deleting Paragraph (8) ("Capitalization") of Section 1 thereof in its entirety and by inserting in lieu thereof the following: (8) Capitalization. The Company has authorized, issued and outstanding stock as set forth in the Company's Quarterly Report on Form 10-Q filed with the Commission for the period ended September 30, 1998 (except for subsequent issuances of Common Stock pursuant to underwritten offerings, the Company's -3- 4 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 was issued in violation of preemptive or other similar rights of any securityholder of the Company; (h) by deleting Paragraph (23) ("Absence of Further Requirements") of Section 1 thereof in its entirety and by inserting in lieu thereof the following: (23) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations under this Underwriting Agreement or the applicable Terms Agreement or in connection with the transactions contemplated under this Underwriting Agreement, such Terms Agreement or any applicable Indenture or Warrant Agreement, 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; (i) by deleting Paragraph (26) ("Title to Property") of Section 1 thereof in its entirety and by inserting in lieu thereof the following: (26) Title to Property. The Company and its Subsidiaries have good and marketable title to all of the properties and assets reflected in the financial statements (or as described in or incorporated by reference into the Registration Statement or Prospectus), in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except (A) as otherwise stated in the Registration Statement and the Prospectus or (B) those which do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries. Except as described in or incorporated by reference into the Registration Statement or the Prospectus, and except 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 or September 30, 1998 consolidated balance sheets or (ii) 10 percent of the Company's total revenues on the Company's consolidated statements of income for the year ended December 31, 1997 or the nine months ended September 30, 1998, no person has an option or right of first refusal to purchase all or part of any Property or any interest therein. All of the leases and subleases material to the business of the Company and its Subsidiaries considered as one enterprise, and under which the Company or any Subsidiary holds Properties described in the Prospectus, are in full force and effect, and neither the Company nor any of its Subsidiaries has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of its Subsidiaries under any of the leases or subleases mentioned above, or affecting or -4- 5 questioning the rights of the Company or such Subsidiary of the continued possession of the leased or subleased premises under any such lease or sublease; (j) by deleting Paragraph (27) ("Leases") of Section 1 thereof in its entirety and by inserting in lieu thereof the following: (27) Leases. Each lease of real property by the Company as lessor is the legal, valid and binding obligation of the lessee in accordance with the terms of such lease (except for such leases as are not material to the business of the Company and except that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought and to the Federal Bankruptcy Code). The rents with respect to the Properties which at present are or remain due and unpaid for more than 30 days are not payable under leases such that, were no further rental payments to be received by the Company under such leases, there would result a Material Adverse Effect. 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. The Company occupies its leased properties under valid and binding leases conforming in all material respects to any description thereof set forth in or incorporated by reference into the Registration Statement or Prospectus; (k) by deleting the word "and" in the 31st line of Paragraph (30) ("Environmental Laws") of Section 1 thereof and by inserting the following in the 34th line thereof after the comma and before the word "the:" 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; (l) by renumbering Paragraph (32) ("Tax Compliance") of Section 1 thereof as Paragraph (31) and by adding in the eighth line of such Paragraph after the word "paid" and before the comma the following: "except where failure to pay would not result in a Material Adverse Effect"; (m) by deleting the references to "signed" in the third and sixth lines of Paragraph (c) of Section 3 thereof and by inserting "conformed" in lieu thereof; and (n) by deleting the words "Merrill Lynch at World Financial Center, North Tower, New York, New York 10281-1201 attention of: Tjarda Clagett, Director" in the second sentence of Section 11 thereof and by inserting the words "BT Alex. Brown Incorporated, One South Street, Baltimore, Maryland 21202, Attention: Patrick O'Shea" in lieu thereof. -5- 6 The Company represents and warrants to the Underwriters that the representations and warranties of the Company set forth in Section 1 of the Underwriting Agreement, as modified in the preceding paragraphs, are accurate as though expressly made at and as of the date hereof. The parties hereto agree and acknowledge that the information set forth in the third paragraph under the caption "Underwriting" in the Prospectus Supplement dated January 8, 1999 constitutes the only information furnished by the Underwriters to the Company for inclusion in the Registration Statement and the Prospectus. Except as otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. -6- 7 Please accept this offer no later than 5:00 p.m. (New York City time) on January 8, 1999 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, BT Alex. Brown Incorporated By: /s/ Patrick O'Shea ------------------------------------ Name: Patrick O'Shea Title: Principal Accepted: By: JDN REALTY CORPORATION By: /s/ William J. Kerley ------------------------------------ Name: William J. Kerley Title: Chief Financial Officer -7- 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 FACSIMILES (615) 244-6380 809 SOUTH MAIN STREET (615) 244-6804 P. O. BOX 1035 (615) 244-5686 COLUMBIA, TN 38402-1035 (615) 388-6031 January 13, 1999 JDN Realty Corporation 359 East Paces Ferry Road, Suite 400 Atlanta, Georgia 30305 Re: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT DATED JANUARY 8, 1999 (TO THE PROSPECTUS DATED OCTOBER 30, 1997) Ladies and Gentlemen: We are acting as your special securities counsel in connection with the issue and sale of 500,000 shares of common stock, $.01 par value (the "Shares"), by JDN Realty Corporation, a Maryland corporation (the "Company"), to BT Alex. Brown Incorporated (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 January 8, 1999 (the "Prospectus Supplement"), a Terms Agreement between the Company and the Underwriter dated January 8, 1999 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. 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, PLLC 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 FACSIMILES (615) 244-6380 809 SOUTH MAIN STREET (615) 244-6804 P. O. BOX 1035 (615) 244-5686 COLUMBIA, TN 38402-1035 (615) 388-6031 January 13, 1999 JDN Realty Corporation 359 East Paces Ferry Road Suite 400 Atlanta, Georgia 30305 RE: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT DATED JANUARY 8, 1999 (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 issue and sale of 500,000 shares of Common Stock, par value $.01 per share (the "Shares"), under the terms of the Underwriting Agreement, dated July 30, 1997, and the related Terms Agreement, dated January 8, 1999, (the "Agreement"), by and between the Company and BT Alex. Brown Incorporated, a Maryland corporation (the "Underwriter"). In connection with the issue and sale of the Shares, you have requested our opinion as to certain federal income tax matters. All capitalized terms used herein, unless specifically indicated otherwise, shall have the respective meanings set forth in the Agreement. All section references herein, unless otherwise specified, are to the Internal Revenue Code of 1986, as amended (the "Code"). 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 ending December 31, 1994 and for the taxable years ending December 31, 1995, 1996, 1997 and 1998, 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); (b) Compliance with the applicable REIT ratios or tests for the taxable years ending December 31, 1994, 1995, 1996, 1997 and 1998 and projected compliance with such tests for the taxable year ending December 31, 1999, including: 2 JDN Realty Corporation January 13, 1999 Page 2 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 prior to the taxable year ending December 31, 1998; and Asset tests: (1) 75% asset test at the end of each quarter through December 31, 1998; (2) 25% asset test at the end of each quarter through December 31, 1998; (3) 10% asset test at the end of each quarter through December 31, 1998; and (4) 5% asset test at the end of each quarter through December 31, 1998. 2. The Company's certificate, dated as of January 13, 1999. With respect to such certificate, we assume that any certifications as to the Company's belief (or similar qualification) are in fact accurate and true. 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 fifty percent (50%) in value of the stock of the Company; and no person has owned, directly or indirectly, over eight percent (8%) in number of shares or value of the outstanding stock or of any class of 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 Treasury Regulations thereunder. 3 JDN Realty Corporation January 13, 1999 Page 3 3. Additional properties acquired will constitute "real estate assets" and any other investments made by the Company 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, December 31, 1997 or December 31, 1998. 7. The representations contained in the Company's certificate, dated as of January 13, 1999, are accurate and true. 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 ten percent (10%) of the outstanding voting securities of such corporation or other issuer and the securities owned of such issuer will not be greater in value than five percent (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 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, December 31, 1997 and December 31, 1998, 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. 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 4 JDN Realty Corporation January 13, 1999 Page 4 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. This opinion is furnished only for your benefit in connection with the issue and sale of the Shares and, without our prior written consent, may not be quoted (in whole or in part) or relied on for any other purpose or by any other person or entity. 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 Prospectus Supplement. Very truly yours, /s/ Waller Lansden Dortch & Davis A Professional Limited Liability Company -----END PRIVACY-ENHANCED MESSAGE-----