<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
MARCH 30, 1998 (MARCH 25, 1998)
------------------------------
JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-12844 58-1468053
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
359 EAST PACES FERRY ROAD
SUITE 400
ATLANTA, GEORGIA 30305
(Address of Principal Executive Offices) (Zip Code)
(404) 262-3252
(Registrant's Telephone Number, including Area Code)
NOT APPLICABLE
(Former Name)
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<PAGE> 2
ITEM 5. OTHER EVENTS.
On March 25, 1998, the Company entered into a terms agreement
with J.C. Bradford & Co., L.L.C. (the "Underwriter") relating to the sale by the
Company to the Underwriter of 443,623 shares of the Company's common stock, $.01
par value per share (the "Common Stock"), at a price of $32.1219 per share,
resulting in aggregate proceeds to the Company of $14,250,014 before payment of
offering expenses by the Company. The related Underwriting Agreement, dated July
30, 1997, was filed as an exhibit to the Company's Current Report on Form 8-K
filed on August 1, 1997. This offering closed on March 30, 1998. The Underwriter
purchased the Common Stock for resale to the sponsor of Select Real Estate Trust
FT 244, a newly formed unit investment trust (the "Trust"), at an aggregate
purchase price of $14,475,003, resulting in an aggregate underwriting discount
of $224,989. The sponsor intends to deposit the shares of Common Stock into the
Trust in exchange for units in the Trust. The initial units of the Trust will be
sold to investors at an initial public offering price based on the net asset
value of securities in the Trust; for purposes of this calculation, the value of
the Common Stock was $33.8125, the last reported sale price of the Common Stock
on the New York Stock Exchange on March 25, 1998.
A registration statement relating to the Common Stock has been
filed with the Securities and Exchange Commission and was declared effective on
October 30, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
---------- -----------
<S> <C>
1 Terms Agreement dated March 25, 1998 by and between the Company and
J.C. Bradford & Co., L.L.C. and related Underwriting Agreement
(Underwriting Agreement filed as Exhibit 1.1 to the Company's
Current Report on Form 8-K filed on August 1, 1997 and incorporated
herein by reference)
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
23 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company (included in Exhibits 5 and 8)
</TABLE>
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
-----------------------------------
William J. Kerley
Chief Financial Officer
Date: March 30, 1998
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1 Terms Agreement dated March 25, 1998 by and between the Company and
J.C. Bradford & Co., L.L.C. and related Underwriting Agreement
(Underwriting Agreement filed as Exhibit 1.1 to the Company's
Current Report on Form 8-K filed on August 1, 1997 and incorporated
herein by reference)
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
8 Tax Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company
23 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company (included in Exhibits 5 and 8)
</TABLE>
<PAGE> 1
Exhibit 1
JDN REALTY CORPORATION
(A MARYLAND CORPORATION)
443,623 Shares of Common Stock (Par Value $.01 Per Share)
TERMS AGREEMENT
March 25, 1998
To: JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Ladies and Gentlemen:
Reference is made to the JDN Realty Corporation (a Maryland
corporation) - Common Stock, Common Stock Warrants, Preferred Stock and Debt
Securities Underwriting Agreement, dated July 30, 1997 (the "Underwriting
Agreement"), a copy of which is attached hereto as Annex A. This Agreement is
the Terms Agreement referred to in the Underwriting Agreement. J.C. Bradford &
Co., L.L.C. (the "Underwriter") offers to purchase, on and subject to the terms
and conditions set forth herein or incorporated by reference herein to the
Underwriting Agreement, from JDN Realty Corporation, a Maryland corporation (the
"Company"), the following securities of the Company (the "Underwritten
Securities") on the following terms:
<TABLE>
<S> <C>
Title of Underwritten Securities: Common Stock, par value $.01 per share.
Number of Initial Underwritten Securities
to be issued: 443,623 shares.
Public offering price: $32.6291 per share.
Purchase price: $32.1219 per share.
Number of Option Underwritten Securities,
if any, that may be purchased by the
Underwriter: None.
Delayed Delivery Contracts: Not authorized.
Additional co-managers, if any: None.
Other Terms (Lock Up): None.
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
Closing date and location: March 30, 1998, 8:30 a.m., Chicago
time, Chapman and Cutler, 111 W.
Monroe Street, Chicago, Illinois 60603.
</TABLE>
All the provisions contained in the Underwriting Agreement are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. The Underwriter is deemed to have been an original
signatory to the Underwriting Agreement such that the terms and conditions of
the Underwriting Agreement shall inure to the benefit of and be legally binding
on and enforceable by each of the parties hereto.
In addition, the Underwriting Agreement is hereby amended as follows:
(i) by deleting the reference to "$400 million" in the first sentence of the
first paragraph thereof and by inserting "$600 million" in lieu thereof; (ii) by
deleting the reference to "(No. 333-22399)" in the first sentence of the eighth
paragraph thereof and by inserting "(No. 333-38611)" in lieu thereof; (iii) by
deleting the phrase, "prior to the execution of this Underwriting Agreement" in
the 19th line of the eighth paragraph thereof and by inserting "as of the date
of such Registration Statement or Prospectus, as the case may be, and all
references to the "Prospectus" shall be deemed to include all documents
incorporated by reference therein prior to the termination of the offering of
the Underwritten Securities by the Underwriter" in lieu thereof; (iv) by
deleting every reference to "Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated" and "Merrill Lynch" and by inserting "J.C. Bradford & Co.
L.L.C." in lieu thereof; (v) by deleting the reference in the first sentence of
the first paragraph of Section 2(c) to "Hogan & Hartson L.L.P., Columbia Square,
555 Thirteenth Street, N.W., Washington, D.C. 20004" and by inserting "Chapman
and Cutler, 111 W. Monroe Street, Chicago, Illinois 60603" in lieu thereof; (vi)
by deleting every reference to "Hogan & Hartson L.L.P." and by inserting
"Chapman and Cutler" in lieu thereof; (vii) by deleting the references to
"signed" in the third and sixth lines of Paragraph (c) of Section 3 and by
inserting "conformed" in lieu thereof; (viii) by deleting Section 5(c) in its
entirety and inserting in lieu thereof the following: "At the Closing Time, the
Underwriter shall have received from Chapman and Cutler, counsel for the
Underwriter, such opinion or opinions, dated the Closing Time with respect to
the incorporation of the Company, the validity of the Underwritten Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriter may reasonably require."; (ix) by deleting the words in the second
sentence of Section 11 "Merrill Lynch at World Financial Center, North Tower,
New York, New York 10281-1201 Attention: Tjarda Clagett, Director, with a copy
to Hogan & Hartson L.L.P., Columbia Square, 555 Thirteenth Street, N.W.,
Washington, D.C. 20004-1109, Attention: J. Warren Gorrell, Jr." and by inserting
the words "J.C. Bradford & Co., L.L.C., J.C. Bradford Financial Center, 330
Commerce Street, Nashville, Tennessee 37201, Attention: Catherine Gemmato-Smith,
with a copy to Chapman and Cutler, 111 W. Monroe Street, Chicago, Illinois
60603, Attention: Jonathan A. Koff" in lieu thereof; and (x) by deleting the
words in the second sentence of Section 11 "3340 Peachtree Road, Suite 1530,
Atlanta, Georgia" and by inserting the words "359 East Paces Ferry Road, Suite
400, Atlanta, Georgia, 30305" in lieu thereof.
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<PAGE> 3
Section 1 of the Underwriting Agreement is hereby amended as follows:
(i) by deleting Paragraph (4) ("Financial Statements") in its
entirety and inserting in lieu thereof the following:
"(4) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement and
the Prospectus, together with the related schedules and notes, as well
as those financial statements, schedules and notes of any other entity
included in the Registration Statement and the Prospectus, present
fairly the consolidated financial position of the Company and its
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries, or such other entity, as the case may
be, for the periods specified; the combined statements of revenue and
certain expenses of certain properties acquired or to be acquired by
the Company included in the Registration Statement and the Prospectus,
together with the related notes, present fairly the combined revenues
and expenses of such properties at the dates indicated and are in
conformity with the requirements of Rule 3-14 of Resolution S-X; such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved; the supporting schedules, if any,
included in the Registration Statement and the Prospectus, when
considered in relation to the basic financial statements taken as a
whole, present fairly in accordance with GAAP the information required
to be stated therein; any selected financial data and the summary
financial information included in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus;
and any pro forma consolidated financial statements of the Company and
its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, with the exception of adjustment (6) in footnote 14 to the
Company's financial statements for the year ending and as of December
31, 1994, to the extent such adjustment affects the Company's 1994 pro
forma financial information included in the Registration Statement and
the Prospectus, and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. No
other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the
Prospectus under the 1933 Act or the 1933 Act Regulations.";
(ii) by deleting Paragraph (7) ("Good Standing of Subsidiaries") in
its entirety and inserting in lieu thereof the following:
"(7) Good Standing of Significant Subsidiaries. Each
significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933
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<PAGE> 4
Act), if any, and JDN Development Company, Inc. (each, a "Significant
Subsidiary") has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its formation, has the
requisite power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect; except as
stated in the Prospectus, all of the issued and outstanding equity
securities of each Significant Subsidiary have been duly authorized
and are validly issued, fully paid and non-assessable and are owned by
the Company, directly or through subsidiaries (except in the case of
JDN Development Company, Inc., the outstanding voting stock of which
is owned 99% by J. Donald Nichols and 1% by the Company, and the
outstanding non-voting stock of which is owned 100% by the Company),
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Significant Subsidiary was issued in violation of
preemptive or other similar rights of any security holder of such
Significant Subsidiary.";
(iii) by deleting Paragraph (8) ("Capitalization.") in its entirety
and inserting in lieu thereof the following:
(8) Capitalization. The Company has authorized, issued and
outstanding capital stock as set forth in the Company's Annual Report
on Form 10-K filed with the Commission for the period ended December
31, 1997 (except for any subsequent issuances of Common Stock pursuant
to Terms Agreements dated February 10, 1998 and February 23, 1998, and
pursuant to the Company's Dividend Reinvestment and Stock Purchase
Plan, 1995 Employee Stock Purchase Plan, 1993 Incentive Stock Plan and
1993 Non-Employee Director Stock Option Plan). Such shares of capital
stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital
stock were issued in violation of preemptive or other similar rights of
any securityholder of the Company.
(iv) by deleting the last four lines of Paragraph (23) ("Absence of
Further Requirements") and inserting in lieu thereof the following:
"except for the registration of the Underwritten
Securities under the 1933 Act or under state securities laws,
compliance with the listing requirements of the New York Stock
Exchange, or approval of the National Association of Securities
Dealers, Inc., if applicable, all of which have been or will be
effected in accordance with this Agreement.";
(v) by deleting the second sentence of Paragraph (26) ("Title To
Property") in its entirety and inserting in lieu thereof the following:
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<PAGE> 5
"Except as described in or incorporated by reference
into the Registration Statement or the Prospectus, and with respect to
other Properties that, singly or in the aggregate, did not account for
more than either (i) 10 percent of the total assets on the Company's
December 31, 1997 consolidated balance sheet, or (ii) 10 percent of the
Company's total revenues on the Company's consolidated statement of
income for the year ended December 31, 1997, no person has an option or
right of first refusal to purchase all or part of any Property or any
interest therein":
(vi) by deleting the third sentence of Paragraph (27) ("Leases") in
its entirety and inserting in lieu thereof the following:
"Except as disclosed in or incorporated by reference
into the Prospectus and except as would not have a Material Adverse
Effect, the Company has no knowledge that any tenant which is
responsible for aggregate annualized base rent in excess of $1,200,000
under all of its leases at the Properties is not financially capable of
performing its obligations thereunder.";
(vii) by deleting in the 31st line of Paragraph (30) ("Environmental
Laws") the word "and" after the comma and before the parenthetical "(4)," and by
adding in the 34th line after the comma and before the word "the" the following:
"and (5) a corrective action plan required by the
State of Georgia (relating to soil and ground water affected by an
underground storage tank release) of the owner of the Golden Gallon
site near the Company's Lafayette, Georgia property,"
(viii) by adding in the eighth line of Paragraph (32) ("Tax
Compliance") after the word "paid" and before the comma the following:
"except where failure to pay would not result in a
Material Adverse Effect."
The Company represents and warrants to the Underwriter that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement, as modified in the preceding paragraph, are accurate as
though expressly made at and as of the date hereof.
The parties acknowledge that the information set forth in the last
paragraph on the front cover page and in the second paragraph under the caption
"Underwriting" in the Prospectus Supplement dated March 25, 1998 constitutes the
only information furnished by the Underwriter to the Company for inclusion in
the Registration Statement, any preliminary prospectus, and the Prospectus.
Terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Underwriting Agreement.
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<PAGE> 6
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
J.C. BRADFORD & CO., L.L.C.
By /s/ Catherine Gemmato-Smith
------------------------------
Name: Catherine Gemmato-Smith
Title: Managing Director
Accepted:
JDN REALTY CORPORATION
By /s/ J. Donald Nichols
-------------------------------
Name: J. Donald Nichols
Title: Chairman & CEO
<PAGE> 1
Exhibit 5
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
(615) 244-6380
FACSIMILE 809 SOUTH MAIN STREET
(615) 244-6804 P. O. BOX 1035
COLUMBIA, TN 38402-1035
(615) 388-6031
March 30, 1998
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Re: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT
(TO THE PROSPECTUS DATED OCTOBER 30, 1997)
Ladies and Gentlemen:
We are acting as your counsel in connection with the issue and
sale of 443,623 shares of common stock, $.01 par value (the "Shares"), by JDN
Realty Corporation, a Maryland corporation (the "Company"), to J.C. Bradford &
Co., L.L.C. (the "Underwriter"), pursuant to a Registration Statement on Form
S-3 (Registration No. 333-38611) (the "Registration Statement"), including the
Prospectus dated October 30, 1997 contained therein (the "Prospectus") as
supplemented by the Prospectus Supplement dated March 25, 1998 (the "Prospectus
Supplement"), a Terms Agreement between the Company and the Underwriter dated
March 25, 1998 and the related Underwriting Agreement, dated July 30, 1997
(collectively, the "Underwriting Agreement").
As such counsel and in connection with the foregoing, we have
examined and relied upon such records, documents and other instruments as in our
judgment are necessary or appropriate in order to express the opinion
hereinafter set forth, and have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
photostatic copies.
Based upon and subject to the foregoing and such other matters
as we have deemed relevant, we are of the opinion that the Shares have been duly
authorized by all necessary corporate action and, when delivered and issued upon
payment therefor in the manner and on the terms described in the Registration
Statement, the Prospectus, the Prospectus Supplement and the Underwriting
Agreement, will be validly issued, fully paid and non-assessable.
<PAGE> 2
JDN Realty Corporation
March 30, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and further consent to the reference to Waller
Lansden Dortch & Davis, A Professional Limited Liability Company, under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS,
A Professional Limited Liability Company
<PAGE> 1
Exhibit 8
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
(615) 244-6380
FACSIMILE 809 SOUTH MAIN STREET
(615) 244-6804 P. O. BOX 1035
COLUMBIA, TN 38402-1035
(615) 388-6031
March 30, 1998
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
RE: JDN REALTY CORPORATION - PROSPECTUS SUPPLEMENT
DATED MARCH 25, 1998 (TO THE PROSPECTUS DATED OCTOBER 30, 1997)
Ladies and Gentlemen:
We have acted as special tax counsel to JDN Realty Corporation, a
Maryland corporation (the "Company"), in connection with the public offering of
443,623 shares of common stock of the Company (the "Shares"), as more fully
described in the Company's Prospectus Supplement dated March 25, 1998 (to the
Prospectus dated October 30, 1997), included in the Registration Statement on
Form S-3 (File No. 333-38611) (the "Registration Statement"). In connection with
the public offering of the Shares, you have requested our opinion that the
Company qualified as a real estate investment trust ("REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code") for
its taxable years ended December 31, 1994, December 31, 1995, December 31, 1996
and December 31, 1997 and that its current method of organization and operation
will enable it to continue to qualify as a REIT. All capitalized terms in this
opinion which are defined in the Registration Statement or the Prospectus
Supplement shall have the same respective meanings as set forth in the
Registration Statement or the Prospectus Supplement pertaining to the offering
of the Shares.
In rendering our opinion, we have examined and relied upon the
following documents and other materials:
1. Schedules prepared or delivered by officials of the Company setting
forth:
(a) REIT taxable and gross income for the short taxable year
ended December 31, 1994 and for fiscal years ended December 31, 1995,
1996 and 1997, together with a schedule of actual dividends
distributed and projected dividends to be distributed in accordance
with Code Section 858 and compliance with the distribution
requirements of Code Section 857(a);
<PAGE> 2
JDN Realty Corporation
March 30, 1998
Page 2
(b) Compliance with the applicable REIT ratios or tests for the
fiscal years ended December 31, 1994, 1995, 1996 and 1997 and
projected compliance with such tests for the fiscal year ending
December 31, 1998, including:
Income tests:
(1) 95% gross income test for the year;
(2) 75% gross income test for the year; and
(3) 30% gross income test for each year through the fiscal
year ending December 31, 1997; and
Asset tests:
(1) 75% asset test at the end of each quarter through December
31, 1997;
(2) 25% asset test at the end of each quarter through December
31, 1997;
(3) 10% asset test at the end of each quarter through December
31, 1997; and
(4) 5% asset test at the end of each quarter through December
31, 1997.
2. The Company's certificate, dated as of March 30, 1998.
In addition, we have examined such additional records, documents,
certificates and other instruments and made such investigations of fact and law
as in our judgment are necessary or appropriate to enable us to render the
opinion expressed below.
In rendering our opinion, we have relied upon the following
representations of the Company. To the extent that the representations of the
Company are with respect to matters set forth in the Code or Treasury
Regulations, we have discussed with the Company's officers the relevant
provisions of the Code, the applicable Treasury Regulations and published
administrative interpretations thereof.
1. The common stock of the Company has been since the completion of
the initial public offering, and will continue to be beneficially owned by over
100 persons, as defined for purposes of Section 856(a)(5) of the Code; and five
or fewer persons have not owned, directly or indirectly under the rules of
Section 544 as modified by Section 856(h) of the Code, at any time since the
completion of the initial public offering, over 50% in value of the stock of the
Company; and no person will own, directly or indirectly, over 8% in number of
shares or value of the outstanding stock of the Company; provided, however, that
"Excluded Holders" may hold up to the "Excluded Holder Ownership Limit," as such
terms are defined in the Company's Charter.
2. The Company has at all times and will continue to comply with any
and all procedural requirements for REIT status set forth in Sections 856
through 860 of the Code and the
<PAGE> 3
JDN Realty Corporation
March 30, 1998
Page 3
regulations thereunder.
3. Additional properties acquired will constitute "real estate assets"
and any other investments made by the REIT will be made in a manner to satisfy
the asset tests of Section 856(c) of the Code.
4. The income from existing and additional leases entered into or
acquired and the income from other investments will not cause the Company to
fail to satisfy the income tests of Section 856(c) of the Code.
5. The Company will actually operate in accordance with its past and
proposed method of operation as described in its filings with the Securities and
Exchange Commission under the Securities Act of 1933 and the Securities Exchange
Act of 1934.
6. The Company had no undistributed "C" corporation earnings and
profits at December 31, 1994, December 31, 1995, December 31, 1996 or
December 31, 1997.
7. The representations contained in the Company's certificate, dated
as of March 30, 1998, are accurate.
8. All partnerships in which the Company may have an ownership interest
will own only "real estate assets" and cash reserves. All activities of those
partnerships will consist of activities permitted to be undertaken by a REIT and
income, other than interest income on cash reserves, shall be "rents from real
property."
9. Each corporation in which the Company has acquired or acquires an
equity interest shall either be a "Qualified REIT Subsidiary" under Section
856(i) of the Code or the Company will not own over 10% of the outstanding
voting securities of such corporation or other issuer and the securities owned
of any issuer other than a Qualified REIT Subsidiary will not be greater in
value than 5% of the value of the total assets of the Company.
On the basis of and in reliance on the foregoing, we wish to advise you
that under current law, including relevant statutes, regulations and judicial
and administrative precedent (which law is subject to change on a retroactive
basis), in our opinion:
<PAGE> 4
JDN Realty Corporation
March 30, 1998
Page 4
(a) the Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT under
the Code for its taxable years ended December 31, 1994, December 31,
1995, December 31, 1996 and December 31, 1997 and the Company's current
organization and method of operation will enable it to continue to meet
the requirements for qualification and taxation as a REIT under the
Code; and
(b) the discussion in the Company's Form 8-K dated January 26,
1998, incorporated into the Prospectus under the heading "Federal
Income Tax and ERISA Considerations" is correct in all material
respects and fairly summarizes the federal income tax considerations
that are likely to be material to a holder of the Shares.
The Company's qualification and taxation as a REIT depend upon the
Company's ability to meet on a continuing basis, through actual annual operating
and other results, the various requirements under the Code and described in or
incorporated by reference into the Registration Statement with regard to, among
other things, the sources of its gross income, the composition of its assets,
the level of its distributions to shareholders, and the diversity of its stock
ownership. Waller Lansden Dortch & Davis, A Professional Limited Liability
Company will not review the Company's compliance with these requirements on a
continuing basis. Accordingly, no assurance can be given that the actual results
of operations of the Company and its subsidiaries, the sources of their income,
the nature of their assets, the level of the Company's distributions to
shareholders and the diversity of its stock ownership for any given taxable year
will satisfy the requirements under the Code for qualification and taxation as a
REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS,
A Professional Limited Liability Company
