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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): NOVEMBER 22, 1996
(NOVEMBER 13, 1996)
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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)
3340 PEACHTREE ROAD, N.E.
SUITE 1530
ATLANTA, GEORGIA 30326
(Address of Principal Executive Offices) (Zip Code)
(404) 262-3252
(Registrant's Telephone Number, including Area Code)
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ITEM 5. OTHER EVENTS.
On November 13, 1996, the Company entered into an
underwriting agreement with Smith Barney Inc. and The Robinson-Humphrey
Company, Inc. (collectively, the "Underwriters") relating to the sale by the
Company to the Underwriters of 1,900,000 shares of the Company's common stock,
$.01 par value per share (the "Common Stock"), at a price of $25.75 per share,
which closed on November 19, 1996. The Company has granted the Underwriters a
30-day option to purchase up to 285,000 additional shares of Common Stock
solely to cover over-allotments, if any. A registration statement relating to
these securities has been filed with the Securities and Exchange Commission and
was declared effective on May 11, 1995.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
Exhibit No. Description
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1 Underwriting Agreement by and between the
Company and Smith Barney Inc. and The Robinson-
Humphrey Company, Inc.
5 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
Exhibit 5)
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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
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William J. Kerley
Chief Financial Officer
Date: November 21, 1996
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EXHIBIT INDEX
Exhibit No. Description
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1 Underwriting Agreement by and between the
Company and Smith Barney Inc. and The Robinson-
Humphrey Company, Inc.
5 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
Exhibit 5)
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Exhibit 1
1,900,000 Shares
Common Stock
UNDERWRITING AGREEMENT
November 13, 1996
SMITH BARNEY INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
JDN REALTY CORPORATION, a Maryland corporation (the
"Company"), proposes to issue and sell an aggregate of 1,900,000 shares (the
"Firm Shares") of its common stock, $.01 par value per share (the "Common
Stock"), to Smith Barney Inc. and The Robinson-Humphrey Company, Inc. (the
"Underwriters"). The Company also proposes to sell to the Underwriters, upon
the terms and conditions set forth in Section 2 hereof, up to an additional
285,000 shares (the "Additional Shares") of Common Stock. The Firm Shares and
the Additional Shares are hereinafter collectively referred to as the "Shares."
As used herein the term "Properties" refers to the properties
listed on Schedule II hereto which represent all of the real property in which
the following entities own an interest: the Company, JDN Development Company,
Inc. ("JDN Development"), subsidiaries of the Company or JDN Development and
joint ventures (including limited liability companies) in which any of the
Company, JDN Development or any of their subsidiaries own an interest.
The Company wishes to confirm as follows its agreement with
the Underwriters in connection with the several purchases of the Shares by the
Underwriters.
1. Registration Statement and Prospectus. A registration
statement on Form S-3 (File No. 33-91222) with respect to the Shares has been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission under the Act. The Company is
eligible to use Form S-3 for the registration of the Shares under the Act.
Copies of such registration statement, including any amendments thereto, the
prospectus and the exhibits, financial statements and schedules, as finally
amended and revised, included or incorporated by reference therein,
collectively herein referred to as the "Registration Statement," as well as
copies
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of the preliminary prospectus supplement, if any, relating to the offering of
the Shares, have heretofore been delivered by the Company to you. The
Registration Statement has been declared effective by the Commission under the
Act, and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The prospectus constituting a part of
the Registration Statement at the time the Registration Statement was declared
effective by the Commission and the prospectus supplement relating to the
offering of the Shares pursuant to Rule 415 of the Rules and Regulations (the
"Prospectus Supplement"), including all documents incorporated by reference in
the prospectus, as from time to time amended or supplemented pursuant to the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise, are collectively referred to herein as the "Prospectus." Each
preliminary prospectus supplement related to the offering of the Shares, if
any, is herein referred to as a "Preliminary Prospectus Supplement." Any
reference herein to the Registration Statement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein,
as of the date of such Registration Statement or Prospectus, as the case may
be, and, in the case of any reference herein to any Prospectus, also shall be
deemed to include any documents incorporated by reference therein, and any
supplements or amendments thereto filed with the Commission after the date of
filing of the Prospectus under Rule 424(b) and prior to the termination of the
offering of the Shares by the Underwriters. As used herein, the term
"Incorporated Documents" means the documents which at the time are incorporated
by reference in the Registration Statement, the Prospectus or any amendment or
supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of $24.46 per Share
(the "purchase price per share"), the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm
Shares increased as set forth in Section 10 hereof).
The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriters, and, upon the basis
of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time-to-time prior to 9:00 P.M., New York
City time, on the 30th day after the date of this Agreement (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business date
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of 285,000 Additional Shares. Additional Shares may be purchased only
for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number or Firm Shares increased as set forth in
Section 10 hereof) bears to the aggregate number of Firm Shares.
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3. Terms of Public Offering. The Company has been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after this Agreement has become effective as in
your judgment is advisable and initially to offer the Shares upon the terms set
forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of any payment for the Firm Shares shall be made at the office
of Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, at 10:00 A.M.,
New York City time, on November 19, 1996 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Smith Barney Inc. at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in a written notice from you on behalf of the Underwriters
to the Company of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement between you and the Company.
Certificates for the Firm Shares and for any Additional
Shares to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing Date,
as the case may be. Such certificates shall be made available to you in New
York City for inspection and packaging not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Firm Shares and any
Additional Shares to be purchased hereunder shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, against payment of
the purchase price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause such post-effective amendment to
become effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing, when the post-effective
amendment has become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any request by
the Commission for amendment of or a supplement to the Registration Statement
or the Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or
sale in any jurisdiction or the initiation of any proceeding for such purpose;
and (iii) within the period
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of time referred toin paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge
(i) three copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the Registration Statement, (ii) such number of conformed
copies of the Registration Statement as originally filed and of each amendment
thereto, but without exhibits, as you may request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may request, and (iv)
three copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus
or, prior to the end of the period of time referred to in the first sentence in
paragraph (f) below, file any document which, upon filing becomes an
Incorporated Document, of which you shall not previously have been advised or
to which, after you shall have received a copy of the document proposed to be
filed, you shall reasonably object.
(e) The Company will use its best efforts to meet the
requirements to qualify as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code").
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Underwriters a prospectus is required by the Act
to be delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set
forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which,
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upon filing, becomes an Incorporated Document) in order to comply with the Act
or any other law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto (or to such document), and will expeditiously
furnish to the Underwriters and dealers a reasonable number of copies thereof.
If the Company and the Underwriters agree that the Prospectus should be amended
or supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the several Underwriters
and by dealers under the securities or Blue Sky laws of such jurisdictions as
you may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its
security holders a consolidated earning statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as soon
as practicable after the end of such period, which consolidated earning
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to stockholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if
this Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or fulfill any
of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the
sale of the Shares substantially in accordance with the description set forth
in the Prospectus Supplement.
(l) The Company will (i) prepare and timely file with
the Commission under Rule 424(b) of the Rules and Regulations a Prospectus
Supplement containing information previously omitted at the time of
effectiveness of the Registration Statement and (ii) file on a timely basis all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and
prior to the termination of the offering of the Shares by the Underwriters.
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(m) Except as provided in this Agreement, the Company
will not sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
grant any options or warrants to purchase Common Stock, except the Company may,
without such consent, grant options and issue shares of Common Stock in
connection with (i) existing employee benefit plans of the Company, (ii) the
Company's Dividend Reinvestment and Stock Purchase Plan and Employee Stock
Purchase Plan, or (iii) acquisition of interests in additional properties, for
a period of 30 days after the date of the Prospectus Supplement, without the
prior written consent of Smith Barney Inc.
(n) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
its current officers and directors designated by you.
(o) Except as stated in this Agreement and in the
Prospectus, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the
shares of Common Stock which it agrees to sell under this Agreement listed,
subject to notice of issuance, on the New York Stock Exchange on or before the
Closing Date.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Company and the transactions contemplated by
this Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement in the form in which it became effective and also in
such form as it may be when any post-effective amendment thereto shall become
effective and the Prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and will not at any such
times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(b) The Incorporated Documents heretofore filed, when
they were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations thereunder,
and any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder; no such document when it was filed (or,
if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and no such further
document,
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when it is filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(c) All the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the Shares have
been duly authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar rights; and
the capital stock of the Company conforms to the description thereof in the
Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Maryland with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole.
(e) All the Company's subsidiaries and JDN
Development are listed on Schedule III hereof (collectively, the
"Subsidiaries"). Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole; all the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned by the Company directly, or
indirectly through one of the other 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 lien,
adverse claim, security interest, equity, or other encumbrance.
(f) There are no legal or governmental proceeding
pending or, to the knowledge of the Company, threatened, against the Company or
any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or
to which any of their respective properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not described
as required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement or any Incorporated Document that are not described or filed as
required by the Act or the Exchange Act.
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(g) Neither the Company nor any of the Subsidiaries
is in violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or in default
in any material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound.
(h) Neither the issuance and sale of the Shares, the
execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the
registration of the Shares under the Act, compliance with the securities or
Blue Sky laws of various jurisdictions, and compliance with the listing
requirements of the New York Stock Exchange, all of which have been or will be
effected in accordance with this Agreement) or conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of the Company or any of the Subsidiaries or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of the Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(i) The accountants, Ernst & Young LLP, who have
certified or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by the Act.
(j) The financial statements, together with related
schedules and notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), present
fairly the financial position, results of operations and changes in financial
position of the respective entity or entities presented therein on the basis
stated in the Registration Statement and the Prospectus at the respective dates
or for the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical
information and data included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and the Subsidiaries. Pro
forma financial information included or incorporated by reference in the
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Prospectus complies in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X under the Act, with the exception of adjustment
6 in footnote 16 to the Company's financial statements for the year and as of
December 31, 1994 included in the Company's Form 10-K for the year ending
December 31, 1995, and the necessary pro forma adjustments have been properly
applied to the historical amounts in the compilation of such information.
(k) The execution and delivery of, and the
performance by the Company of its obligations under, this Agreement have been
duly and validly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Underwriters, constitutes the valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws, and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting the rights and remedies of
creditors generally or subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(l) Except as disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and the
Subsidiaries taken as a whole.
(m) (i) The Company has 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) hereinabove described, subject to no lien, mortgage, pledge, charge
or encumbrance of any kind except those reflected in such financial statements
(or as described in or incorporated by reference into the Registration
Statement or Prospectus) or which are not material in amount; (ii) the Company
occupies its leased properties under valid and binding leases conforming to the
description thereof set forth in or incorporated by reference into the
Registration Statement or Prospectus; (iii) neither any landlord nor any tenant
of any of the Properties is in default under any of the leases pursuant to
which any Property is leased (and the Company does not know of any event which,
but for the passage of time or the giving of notice, or both, would constitute
a default under any of such leases) other than such defaults that would not
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or business prospects of the Company and
the Subsidiaries taken as a whole; (iv) except as set forth in Schedule IV, no
person has an option or right of first refusal to purchase all or part of any
Property or any interest therein; (v) each of the Properties complies with all
applicable codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access to the
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<PAGE> 10
Properties), except if and to the extent disclosed in the Prospectus and except
for such failures to comply that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of the Company and the Subsidiaries taken as a
whole; (vi) there is in effect for the assets of the Company and the Properties
insurance coverages that are commercially reasonable, and the Company has not
received from any insurance company notice of any material defects or
deficiencies affecting the insurability of any such assets; and (vii) the
Company does not have any knowledge of any pending or threatened condemnation
proceedings, zoning change, or other similar proceeding or action that will in
any material respect affect the size of, use of, improvements on, construction
on or access to the Properties.
(n) The Company owns 50% of the membership interests
in JEBCO/JDN LOGANVILLE CENTER L.L.C., and a membership interest representing
50% of the economic interest in River Hills, LLC; and WHF, Inc., a wholly owned
subsidiary of JDN Development, owns 60% of the membership interests in Dogwood
Drive, LLC, all of which limited liability companies are Georgia limited
liability companies (the "LLCs"); and each of the LLCs possesses such
certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now being conducted by it, as described in or incorporated by
reference into the Prospectus, and none of the LLCs has received any notice of
proceedings relating to the modification of any such certificate, authority or
permit which singly or in the aggregate, if the subject of an unfavorable
ruling or decision would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, assets, business affairs or
business prospects of the Company and the Subsidiaries taken as a whole; each
of the LLCs has good and marketable fee simple title to all of its real
property and marketable title to any improvements thereon and all other assets
that are used or useful in the operation of the LLC's business.
(o) JDN Development has good and marketable title to
all of the properties and assets described in or incorporated by reference into
the Prospectus as being owned by it, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those in favor of the Company or those
described in the Prospectus or which are not material in amount.
(p) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the distribution
of the Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prospectus, the Prospectus Supplement or other materials, if any, permitted by
the Act.
(q) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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<PAGE> 11
(r) To the Company's knowledge, neither the Company
nor any of its Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(s) The Company and the Subsidiaries have filed all
federal, state and foreign income tax returns which have been required to be
filed and have paid all taxes indicated by said returns and all assessments
received by them to the extent that such taxes have become due (and are not
being contested in good faith). Except for (i) unpaid taxes for 1993 with
respect to an easement area identified as Parcel II on the A.L.T.A. title
commitment (number 43-902-61- 938569) related to the Property located in Shelby
County, Tennessee (the "Shelby Commitment") for which Chicago Title Insurance
Company has provided affirmative insurance and (ii) any tax or assessment
resulting from the exception specified in item 4 of Schedule B--Section 2 of
the Shelby Commitment, all past due taxes with respect to the Properties have
been paid, and the Company and the Subsidiaries have no liability, and no tax
lien or other charge exists with respect to any Property. All material tax
liabilities have been adequately provided for in the financial statements of
the Company.
(t) No holder of any security of the Company has any
right to require registration of shares of Common Stock or any other security
of the Company because of the filing of the Registration Statement or
consummation of the transactions contemplated by this Agreement.
(u) The Company and the Subsidiaries own or possess
all patents, trademarks, trademark registrations, service marks, service marks
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, and the Company is
not aware of any infringement by the Company or the Subsidiaries of any
intellectual property right which infringement would have a material effect on
the condition (financial or other), earnings, business affairs or business
prospects of the Company and the Subsidiaries, taken as whole.
(v) Except as disclosed in or incorporated by
reference in the Prospectus, the Company has no knowledge that any Property has
ever been used for the disposal, release, handling, treatment, or storage of
any Hazardous Material in any quantity or form that would reasonably
necessitate any responses or corrective action, including any such action under
any Hazardous Material Law; the Company has no knowledge that any Property has
ever been used, and neither the Company (including its predecessor, JDN
Enterprises, Inc. ("Enterprises")) nor any owner of a Property in which J.
Donald Nichols had or has a direct or indirect interest ("JDN Property") has
used any JDN Property, in any manner other than in full compliance with all
Hazardous Material Laws; none of the Company (including Enterprises), the owner
of any JDN Property or, to the Company's knowledge, any owner of any other
Property has ever received written or oral notice or other communication of
pending or threatened claims, actions, suits, proceedings or investigations
related to any Property regarding (i) the disposal or release of solid, liquid
or gaseous waste into the environment, (ii) the treatment, storage, disposal,
release or other handling of any Hazardous Material, (iii) the placement of
structures or materials into
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<PAGE> 12
waters of the United States, (iv) the presence of any Hazardous Material
in any building or structure located on any Property, (v) the presence of any
Hazardous Material related to the ownership, use, condition, or operation of any
Property, or (vi) any alleged violation of any Hazardous Material Law; other
than knowledge of (1) a remediation agreement (relating to a leaking underground
storage tank) entered into between the State of Georgia and the owner of the
Stop 'n' Go site adjacent to the QuikTrip parcel located at the Company's
Lawrenceville Property, (2) a remediation agreement (relating to soil and
groundwater contamination) entered into between the state of North Carolina and
the owner of a tract adjoining the Company's Greenville, North Carolina
Property, and (3) a limited Phase II environmental assessment recommendation
that impacted soils be remediated at the Greensboro, North Carolina Property,
the Company has no knowledge that any soil or water in or adjacent to any
Property is contaminated by any Hazardous Material; to the Company's
knowledge, there are no underground tanks or any other underground storage
facilities located on any Property, and to the Company's knowledge, except as
disclosed in or incorporated by reference into the Prospectus, there have never
been such tanks or facilities on any Property.
Except as disclosed in or incorporated by reference into the
Prospectus, the Company has no knowledge that any real property previously
owned by the Company (including Enterprises) or by any owner of the JDN
Properties (collectively, the "Previously Owned Properties") has ever been used
for the disposal, release, handling, treatment or storage of any Hazardous
Material in any quantity or form that would reasonably necessitate any
responses or corrective action, including any such action under any Hazardous
Material Law; the Company has no knowledge that any Previously Owned Property
has ever been used and neither the Company (including Enterprises) nor any
owner of a JDN Property has used any Previously Owned Property in any manner
other than in full compliance with all Hazardous Material Laws; neither the
Company (including Enterprises) nor the owner of any Previously Owned Property
has ever received written notice or oral notice or other communication of
pending or threatened claims, actions, suits, proceedings or investigations
relating to any Previously Owned Property regarding (i) the disposal or release
of solid, liquid or gaseous waste into the environment, (ii) the treatment,
storage, disposal, release or other handling of any Hazardous Material, (iii)
the placement of structures or materials into water of the United States, (iv)
the presence of any Hazardous Material in any building or structure located on
any Previously Owned Property, (v) the presence of any Hazardous Material
related to the ownership, use, condition or operation of any Previously Owned
Property or (vi) any alleged violation of any Hazardous Material Law; to the
Company's knowledge, there were no underground tanks or any other underground
storage facilities located on any Previously Owned Property during the time
period prior to and including the period that any Previously Owned Property was
owned by the Company (or Enterprises) or any owner of a JDN Property.
As used herein, "Hazardous Material" shall include, without
limitation, any substance which is controlled, regulated or prohibited under
any Hazardous Material Law. "Hazardous Material Law" shall mean any local,
state and federal law relating to the environment and environmental conditions,
including, without limitation, the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 U.S.C. section 6901 et seq., the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. sections
9601-9637, as amended by the Superfund Amendments and Reauthorization Act of
1986 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. section
6901, et seq., the Federal Water Pollution
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<PAGE> 13
Control Act, 33 U.S.C. sections 1251 et seq., the Clean Air Act, 42 U.S.C.
sections 741, et seq., the Clean Water Act, 33 U.S.C. section 7401, et seq., the
Toxic Substances Control Act, 15 U.S.C. sections 2601-2629, and the Safe
Drinking Water Act, 42 U.S.C.
sections 300f-300j.
(w) 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 be a material adverse
effect on the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Company and the Subsidiaries taken
as a whole. The Company has no reason to believe that any tenant which is
responsible for aggregate annual rental payments in excess of $250,000 under all
of its leases at the Properties is not financially capable of performing its
obligations thereunder or intends to terminate any of its leases prior to
expiration thereof. The Company occupies its leased properties under valid and
binding leases conforming in all material respects to the description thereof
set forth in or incorporated by reference into the Registration Statement or
Prospectus.
(x) The Company is organized in conformity with the
requirements for qualification as a REIT and operates in a manner that enables
it to meet the requirements for qualification as a REIT under Sections 856
through 860 of the Code. The Company has elected to be taxed as a REIT under
the Code.
(y) Neither the Company nor any Subsidiary is, nor at
the Closing Date will be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined under the Investment Company
Act of 1940, as amended (the "1940 Act"), and the rules and regulations of the
Commission thereunder.
7. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to such
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter expressly for use in connection therewith. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
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<PAGE> 14
(b) If any action, suit or proceeding shall be
brought against any Underwriter or any person controlling any Underwriter in
respect of which indemnity may be sought against the Company, such Underwriter
or such controlling person shall promptly notify the Company and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all fees and expenses. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests without or among themselves, which firm shall be designated
in writing by Smith Barney Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such suit or proceeding effected without its written consent,
but if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, the Company agrees to
indemnify and hold harmless any Underwriter, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, or any such controlling person based on the Registration Statement, the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company, its directors, any such officer, and
any such controlling person shall have the rights
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<PAGE> 15
and duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Firm Shares set forth opposite their
names in Schedule I hereto (or such numbers of Firm Shares increased as set
forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or
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<PAGE> 16
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding.
(g) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers, or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor to
any Underwriter or any person controlling any Underwriter, or to the Company,
its directors or officers, or any person controlling the Company, its directors
or officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreement contained
in this Section 7.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Shares may
commence, such post-effective amendment shall have become effective not later
than 5:30 P.M., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by you, and all filings, if any,
required by Rules 424 and 430A under the Act shall have been timely made; no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), business, properties, net worth, or results of operations of the Company
or the Subsidiaries not contemplated by the Prospectus, which in your opinion
would materially adversely affect the market for the Shares, or (ii) any event
or development relating to or involving the Company or any officer or director
of the Company which makes any statement made in the Prospectus untrue or which,
in the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such event
or development would, in your opinion, materially adversely affect the market
for the Shares.
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<PAGE> 17
(c) You shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinions of Waller Lansden
Dortch & Davis, Morgan Lewis & Bockius LLP and Glass, McCullough, Sherrill &
Harrold, counsel for the Company, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to you (and stating that they may be relied
upon by your counsel) to the effect that:
(i) The Company has been duly incorporated and is
existing as a corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own, lease and
operate its properties, to conduct its business as described in or
incorporated by reference into the Registration Statement and to enter
into and perform its obligations under this Agreement; each of the
Subsidiaries has been duly incorporated and is existing as a
corporation under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own, lease and operate its
properties and conduct its business as described in or incorporated by
reference into the Registration Statement. The Company and each
Subsidiary are duly qualified to transact business in all
jurisdictions in which the failure to qualify would have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the
Company and the Subsidiaries taken as a whole; and the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and,
except for 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), are owned by the Company or a Subsidiary; and, to such
counsel's knowledge, the outstanding shares of capital stock of each
of the Subsidiaries are owned free and clear of all liens,
encumbrances, security interests, and claims and no options, warrants
or other rights to purchase, agreement or other obligations to issue
or other rights to convert any obligations into any shares of the
capital stock of or ownership interests in the Subsidiaries are
outstanding.
(ii) The Company has authorized and outstanding
capital stock as of September 30, 1996 as incorporated by reference in
the Prospectus from the Company's Quarterly Report on Form 10-Q for
the period ended September 30, 1996, filed with the Commission; the
outstanding shares of its Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; all of the
Shares conform to the description thereof contained in the Prospectus;
the shares of Common Stock, including the Additional Shares, if any,
to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable
when issued and paid for as contemplated by this Agreement; and no
preemptive rights of stockholders exist with respect to any of the
Shares or the issue or sale thereof. Except as described in or
contemplated by the Prospectus, to the knowledge of such counsel,
there are no outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or subscribe for
any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to
purchase or subscribe for any shares of such stock; and except as
described in or contemplated by the Prospectus, to the knowledge of
such counsel, no holder of any securities of the Company or any other
person has the
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<PAGE> 18
right, contractual or otherwise, which has not been satisfied or
effectively waived, to cause the Company to sell or otherwise issue to
them, or to permit them to underwrite the sale of, any of the Shares
or the right to have any Common Stock or other securities of the
Company included in the Registration Statement or the right, as a
result of the filing of the Registration Statement, to require
registration under the Act of any shares of Common Stock or other
securities of the Company.
(iii) The Registration Statement has become
effective under the Act and, to the knowledge of such counsel, no stop
order proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(iv) The Registration Statement, the Prospectus and
each amendment or supplement thereto and the Incorporated Documents
comply as to form in all material respects with the requirements of
the Act (or the Exchange Act, as applicable) and the applicable rules
and regulations thereunder (except that such counsel need express no
opinion as to the financial statements, notes and schedules thereto
included or incorporated by reference therein).
(v) The statements under the captions "Description
of Capital Stock" and "Description of Common Stock" in the Prospectus,
insofar as such statements constitute a summary of documents referred
to therein or matters of law, are accurate summaries and fairly and
correctly present in all material respects the information called for
with respect to such documents and matters.
(vi) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference or described as required, and such contracts
and documents as are summarized in the Registration Statement or the
Prospectus are accurately summarized and the summaries fairly and
correctly present the information called for with respect to such
contracts and documents.
(vii) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the Company or
any Subsidiary except as set forth in the Prospectus.
(viii) The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated do not
and will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, the charter or
by-laws of the Company, or any agreement or instrument known to such
counsel to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary may be bound or any law, order, rule or
regulation applicable to the Company or any Subsidiary or affecting
any of the Properties of any jurisdiction, court or regulatory body or
administrative agency or other governmental body having jurisdiction.
(ix) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
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<PAGE> 19
(x) With respect to each LLC, Company owns the
percentage of the membership interests specified in Section 6(n)
hereof, and based on the certificate for such limited liability
company filed in the records of the Secretary of State of Georgia, the
limited liability company is a validly formed and existing limited
liability company in good standing and, to such counsel's knowledge,
the limited liability company has not received any notice of
proceedings relating to the revocation or modification of such
certificate, which, if the subject of an unfavorable ruling or
decision, would materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the limited liability company.
(xi) No approval, consent, order, authorization,
designation, declaration or filing is necessary in connection with the
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by the
National Association of Securities Dealers, Inc. or as required by
state securities and Blue Sky laws as to which such counsel need
express no opinion) except such as have been obtained or made.
(xii) Neither the Company nor any Subsidiary is, nor
at the Closing Date will be an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined
under the 1940 Act, and the rules and regulations of the Commission
thereunder.
(xiii) Based on certain customary assumptions and
representations (acceptable to counsel for the Underwriter in their
reasonable discretion) relating to applicable asset composition,
source of income, shareholder diversification distribution,
recordkeeping tests and other requirements of the Code necessary for
the Company to qualify as a REIT, the Company was organized and has
operated in conformity with the requirements for qualification and
taxation as a REIT under Sections 856 through 860 of the Code for each
of the taxable years ended December 31, 1994 and December 31, 1995;
the Company's current organization and method of operations will
enable the Company to continue to qualify as a REIT under the Code.
The discussion in the Prospectus under the caption "Federal Income Tax
Considerations" fairly summarizes the federal income tax
considerations that are likely to be material to a holder of Shares
and, to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel, is correct and
presents fairly the information required to be disclosed therein.
(d) In addition to the matters set forth above, the
opinions of Waller Lansden Dortch & Davis and Glass, McCullough, Sherrill &
Harrold shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that the Registration
Statement, as of the time the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 was filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus and any amendment or supplement thereto, as of its date and
the Closing Date or the Option Closing Date, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they
- 19 -
<PAGE> 20
were made, not misleading, except that such counsel need express no view as to
financial statements, notes, and supporting schedules and other financial and
statistical information data included in or incorporated by reference into or
omitted from the Registration Statement, the Prospectus, or the Prospectus
Supplement. With respect to such statement, Waller Lansden Dortch & Davis and
Glass, McCullough, Sherrill & Harrold may state that their belief is based
upon the procedures set forth therein, but is without independent check and
verification and that they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus.
(e) The Underwriters shall have received from Hogan &
Hartson L.L.P., counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (iii) and (iv) (excluding documents incorporated by
reference) of Paragraph (c) of this Section 8, and that this Agreement has been
duly authorized, executed and delivered by the Company, the Company was
incorporated and is existing and in good standing under the laws of the State of
Maryland and that the Shares have been duly authorized and, when issued in
accordance with the provisions of this Agreement, will be validly issued, fully
paid and non-assessable. In rendering such opinion, Hogan & Hartson L.L.P. may
rely as to all matters governed other than by the laws of the District of
Columbia and federal laws on the opinions of counsel referred to in paragraph
(c) of this Section 8. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that no facts have come to the
attention of such counsel which cause them to believe that the Registration
Statement, at the time the Company's Annual Report of Form 10-K for the year
ended December 31, 1995 was filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus and any amendment or supplement thereto, as of its date and
the Closing Date or the Option Closing Date, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that in
making the foregoing statement, such counsel need express no view as to the
financial statements, notes and supporting schedules and other financial and
statistical information and data included in or incorporated by reference into
or omitted from the Registration Statement, the Prospectus, or the Prospectus
Supplement. With respect to such statement, Hogan & Hartson L.L.P. may state
that their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(f) You shall have received letters addressed to you
and dated the date hereof and the Closing Date from Ernst & Young LLP,
independent certified public accountants, substantially in the forms heretofore
approved by you.
(g) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company shall be
contemplated, by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other than
in the ordinary course of business) from that set forth or contemplated in the
Registration Statement or
- 20 -
<PAGE> 21
the Prospectus (or any amendment or supplement thereto); (iii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), any material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (v) all the representations and warranties
of the Company contained in this Agreement shall be true and correct on and as
of the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you), to the effect set
forth in this Section 8(g) and in Section 8(h) hereof.
(h) The Company shall not have failed at or prior to
the Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(i) Prior to the Closing Date the Shares shall have
been listed, subject to notice of issuance, on the New York Stock Exchange.
(j) The Company shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company and delivered to you, or to counsel for the Underwriters, shall be
deemed a representation and warranty by the Company to each Underwriter as the
statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 8, except that,
if any Option Closing Date is other than the Closing Date, the certification,
opinions and letters referred to in paragraphs (c) through (g) shall be dated
the Option Closing Date in question and the opinions and statements called for
by paragraph (c), (d) and (e) shall be revised to reflect the sale of
Additional Shares.
9. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by it
of its obligations hereunder: (i) the preparation, printing or reproduction,
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), the Prospectus, and each amendment
or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus, the Incorporated
Documents, and all amendments or supplements to any of them, as may be
reasonably requested for use in connection with the
- 21 -
<PAGE> 22
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the Shares;
(iv) the printing (or reproduction and delivery of this Agreement, the Blue Sky
Memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) the listing of the
Shares on the New York Stock Exchange; (vi) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 5(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the Blue Sky Memorandum
and such registration and qualification); (vii) the filing fees and the fees and
expenses of counsel for the Underwriters in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company.
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for a post-effective amendment to the Registration Statement to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you, by notifying the
Company.
If either Underwriter shall fail or refuse to purchase Shares
which it is obligated to purchase hereunder on the Closing Date, and the
aggregate number of Shares which such defaulting Underwriter is obligated but
fails or refuses to purchase is not more than one-tenth of the aggregate number
of Shares which the Underwriters are obligated to purchase on the Closing Date,
the non-defaulting Underwriter shall be obligated to purchase the Shares which
such defaulting Underwriter is obligated, but fails or refuses, to purchase. If
any Underwriter shall fail or refuse to purchase Shares which it is obligated
to purchase on the Closing Date and the aggregate number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares which the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such
Shares by the non-defaulting Underwriter or other party or parties approved by
you and the Company are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Company, purchases Shares which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
- 22 -
<PAGE> 23
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of
any Underwriter to the Company, by notice to the Company, if prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and
then only as to the Additional Shares), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
or Georgia shall have been declared by either federal or state authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Company by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements
set forth in the last paragraph on the cover page, the stabilization legend on
the inside front cover, and the statements in the first and third paragraphs
under the caption "Underwriting" in the Prospectus Supplement, constitute the
only information furnished by or on behalf of the Underwriters through you as
such information is referred to in Section 6(a) and Section 7.
13. Miscellaneous. Except as otherwise provided in Section 5,
10 and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at 3340 Peachtree Road, Suite 1530, Atlanta, Georgia, Attention:
J. Donald Nichols, Chairman; or (ii) if to you, care of Smith Barney Inc.,
388 Greenwich Street, New York, New York 10013, Attention: James C. Cowles,
Managing Director.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, its directors and officers, and the
other controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the Shares
in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
- 23 -
<PAGE> 24
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
JDN REALTY CORPORATION
By: /s/ J. Donald Nichols
----------------------------
Chairman of the Board
Confirmed as of the date first above mentioned.
SMITH BARNEY INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
By: SMITH BARNEY INC.
By: /s/ James C. Cowles
-------------------------
Managing Director
- 24 -
<PAGE> 25
SCHEDULE I
JDN REALTY CORPORATION
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
- ----------- -----------
<S> <C>
Smith Barney Inc............................................... 1,330,000
The Robinson-Humphrey Company, Inc............................. 570,000
Total................. 1,900,000
</TABLE>
<PAGE> 26
SCHEDULE II
"PROPERTIES"
I. 47 SHOPPING CENTER PROPERTIES OWNED AND OPERATING:
Owned by JDN Structured Finance 1, Inc.:
Property Location
-----------------
1. Opelika, AL Phase I (Phase II owned by JDN Realty Corporation)
2. Fort Walton, FL
3. Tallahassee, FL
4. Cartersville, GA (Felton's Crossing)
5. Fayetteville, GA
6. Lawrenceville, GA (Five Forks Village)
7. Griffin, GA
8. Lawrenceville, GA (Town Center)
9. Lilburn, GA
10. Riverdale, GA
11. Union City, GA
12. Hendersonville, NC
13. Rockingham, NC
14. Wallace, NC
15. Wilmington, NC
16. Charleston, SC
17. Chattanooga, TN
18. Farragut, TN
19. Memphis, TN
20. Lexington, VA
Owned by JDN Realty Corporation:
Property Location:
------------------
1. Gadsden, AL
2. Canton, GA
3. Cartersville, GA (Bartow Marketplace)
4. Eastman, GA
5. Fort Oglethorpe, GA
6. Lafayette, GA
7. Lagrange, GA
8. Madison, GA
9. Newnan, GA
10. Stockbridge, GA
11. Woodstock, GA
12. Greenville, NC
13. Cheraw, SC
<PAGE> 27
14. Lake City, SC
15. Sumter, SC
16. Columbia, TN
17. Franklin, TN
18. Goodlettsville, TN
19. Murfreesboro, TN
20. Tullahoma, TN
21. Burlington, OH
22. Richmond, KY
23. Loganville, GA (owned 50% through JEBCO/JDN Loganville Center LLC)
(see IV below)
24. Asheville, NC (owned 50% through River Hills L.L.C.)
(see IV below)
OWNED BY JDN DEVELOPMENT COMPANY, INC.
1. Canton, GA
2. Steubenville, OH
3. Conyers, GA (owned 60% through WHF, Inc. through Dogwood Drive, L.L.C.)
(see IV below)
II. 37 OUTPARCELS OWNED:
Owned by JDN Realty Corporation:
Property Location:
------------------
1. Charleston, SC
2. Lexington, VA
3. Lexington, VA
4. Lexington, VA
5. Lexington, VA
6. Hickory, NC
7. Rockingham, NC
8. Rockingham, NC
9. Wallace, NC
10. Wilmington, NC
11. Wilmington, NC
12. Lawrenceville, GA (Town Center)
13. Lawrenceville, GA (Town Center)
14. Gadsden, AL
15. Eastman, GA
16. Eastman, GA
17. Eastman, GA
18. Eastman, GA
19. Eastman, GA
- 2 -
<PAGE> 28
20. Lafayette, GA
21. Lafayette, GA
22. Lafayette, GA
23. Lafayette, GA
24. Madison, GA
Owned by JDN Structured Finance 1, Inc.:
Property Location:
------------------
1. Fayetteville, GA
Owned by JDN Development Company:
Property Location:
------------------
1. Lithonia, GA (Turner Hill)
2. Newnan, GA
3. Greenville, NC
4. Greenville, NC
5. Greenville, NC
6. Canton, GA
7. Canton, GA
8. Steubenville, OH
9. Loganville, GA (owned through JEBCO/JDN Loganville Outparcel LLC)
10. Loganville, GA (owned through JEBCO/JDN Loganville Outparcel LLC)
11. Conyers, GA (owned through Dogwood Drive, L.L.C.)
12. Conyers, GA (owned through Dogwood Drive, L.L.C.)
<TABLE>
<CAPTION>
III. DEVELOPMENT PROJECTS:
PROPERTY LOCATION CURRENT OWNER
----------------- -------------
<S> <C>
A. DEVELOPMENT PROJECTS:
1. Canton, GA JDN Development
2. Greenville, NC (a) JDN Realty - shopping center tract
(b) JDN Development - outparcels
3. Steubenville, OH JDN Development
4. Cumming, GA JDN Development
5. Warner Robins, GA (a) JDN Development - Lowe's
(b) JDN Realty - Shops
6. Monaca, PA (a) JDN Development - Lowe's
</TABLE>
- 3 -
<PAGE> 29
<TABLE>
<S> <C>
(b) JDN Development - Shops
7. Winston-Salem, NC JDN Development
8. Greensboro, NC (a) JDN Realty - shopping center tract
(b) JDN Development - outparcel
B. POTENTIAL DEVELOPMENT PROJECTS:
1. Cobb County, GA (a) JDN Realty - shopping center tract
(b) JDN Development - outparcels
</TABLE>
<TABLE>
<CAPTION>
IV. OTHERS (DIRECT OR INDIRECT INVESTMENTS IN ENTITIES OWNING
REAL ESTATE)
PROPERTY LOCATION CURRENT OWNER
----------------- -------------
<S> <C>
1. Loganville, GA (a) JEBCO/JDN Loganville Center LLC -
shopping center tract (JDN Realty owns 50%)
(b) JEBCO/JDN Loganville Outparcel LLC -
outparcels (JDN Development owns 50%)
2. Conyers, GA Dogwood Drive, L.L.C. (WHF, Inc. owns 60%)
3. Asheville, NC River Hills L.L.C. (JDN Realty holds 50% of
economic interest and 20% of governance rights)
4. Opelika, AL Pepperell Corners, L.P. (JDN of Alabama
Realty Corporation owns a 10.84% LP and a
1.00% GP interest)
</TABLE>
- 4 -
<PAGE> 30
SCHEDULE III
(SECTION 6(E))
SUBSIDIARIES OF JDN REALTY CORPORATION
<TABLE>
<CAPTION>
JDN Realty Corporation
Name of Subsidiary Capital Stock Ownership
- ------------------ -----------------------
<S> <C>
JDN Structured Finance 1, Inc. 100%
JDN of Pennsylvania Realty Corporation 100%
JDN Development Company, Inc.* 1% Voting, 100%
Non-Voting
</TABLE>
- --------------------
*JDN Development Company, Inc. has the following corporate subsidiaries:
<TABLE>
<CAPTION>
JDN Development Company, Inc.
Name of Subsidiary Capital Stock Ownership
------------------ -----------------------------
<S> <C>
JDN of Alabama Realty Corporation 100%
WHF, Inc. 100%
JDN Beaver Valley Development Company, Inc. 100%
</TABLE>
<PAGE> 31
SCHEDULE IV
(Section 6m(iv))
1. American Hospitality Corporation as tenant under the Ground Lease
Agreement, dated April, 1986, between Taco Bell Corp. and Cherokee
Investors, Ltd., as assigned and amended from time to time (the "Taco
Bell Lease") which has the right under the Taco Bell Lease to purchase
the property that is demised by the Taco Bell Lease (the "Demised
Premises") within the Property known as the Tullahoma Shopping Center
for the "mutually agreeable price" if the Demised Premises are
"purchased by the landlord."
2. The parties to the Operating Agreement for JEBCO/JDN LOGANVILLE CENTER
L.L.C.
3. The parties to the Operating Agreement for Dogwood Drive LLC.
<PAGE> 1
Exhibit 5
[WALLER LANSDEN DORTCH & DAVIS LETTERHEAD]
November 13, 1996
JDN Realty Corporation
3340 Peachtree Road, N.E.
Suite 1530
Atlanta, Georgia 30326
Re: Registration Statement on Form S-3/
Prospectus Supplement dated November 13, 1996 to the
Prospectus dated May 11, 1995
Ladies and Gentlemen:
We are acting as your counsel in connection with the issuance and sale
of 1,900,000 shares of common stock, $.01 par value (the "Shares"), by JDN
Realty Corporation, a Maryland corporation (the "Company"), to Smith Barney
Inc. and The Robinson-Humphrey Company, Inc. (the Underwriters"), pursuant to a
Registration Statement on Form S-3 (Registration No. 33-91222) (the
"Registration Statement"), including the Prospectus dated May 11, 1995
contained therein (the "Prospectus") as supplemented by the Prospectus
Supplement dated November 13, 1996 (the "Prospectus Supplement"), and an
Underwriting Agreement between the Company and the Underwriters dated
November 13, 1996 (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.
<PAGE> 2
JDN Realty Corporation
November 13, 1996
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 us under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS, PLLC
