<PAGE>
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
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Date of Report (Date of earliest event reported): September 1, 1995
Merry Land & Investment Company, Inc.
(Exact name of registrant as specified in its charter)
Georgia 001-11081
(State or other jurisdiction of incorporation) (Commission File Number)
58-0961876
(I.R.S. Employer I.D. Number)
624 Ellis Street, Augusta, Georgia 30901
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 706/722-6756
____________________________________________________________
(Former name or former address, if changed since last report)
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Filed: September 1, 1995
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ITEM 5. OTHER EVENTS. Merry Land & Investment Company, Inc. (the
"Company") has completed the offering of $40,000,000 of its 7-1/4% Notes
due 2002 (the "Notes"). The offering of the Notes was made pursuant to a
Prospectus Supplement dated August 28, 1995 relating to the Prospectus
dated February 10, 1995 filed with the Company's shelf registration
statement #33-57453 on Form S-3.
The Notes bear interest at 7-1/4% from September 1, 1995, with
interest payable each April 1 and October 1 beginning April 1, 1996. The
entire principal amount of the Notes is due October 1, 2002.
The Notes were sold under an Indenture and Supplemental Indenture with
First Union National Bank of Georgia as Trustee. The underwriting discount
was 0.725% and the price to the public was 99.933% of the principal amount
of the Notes.
The net proceeds to the Company from the sale of the Notes were
$39,683,200. The Company intends to use the net proceeds to acquire and
develop additional apartment properties.
Delivery of the Notes was made on September 1, 1995 through the
facilities of the Depository Trust Company, against payment therefor in
immediately available funds.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS. The Company is filing with this current report copies of the
following documents in connection with this Offering.
A. EXHIBIT 1: Underwriting Agreement.
B. EXHIBIT 4A: Form of Merry Land & Investment Company, Inc. 7 1/4%
Notes due 2002.
C. EXHIBIT 4B: Indenture (incorporated herein by reference to Exhibit
4B of the Company's current report on Form 8-K filed
June 23, 1995).
D. EXHIBIT 4C: First Supplemental Indenture (incorporated herein
by reference to Exhibit 4C of the Company's
current report on Form 8-K filed June 23, 1995).
E. EXHIBIT 5: Opinion as to the legality of the Notes.
F. EXHIBIT 8: Tax Opinion.
G. EXHIBIT 12: Statement regarding computation of ratios (incorporated
herein by reference to Exhibit 12 of the Company's 1994
10-K filed March 8, 1995).
H. EXHIBIT 23: Consent of Hull, Towill, Norman & Barrett, P.C.
(contained in Exhibits 5 and 8).
I. EXHIBIT 27: Financial Data Schedule (incorporated herein by
reference to Exhibit 27 of the Company's 1994 10-K
filed March 8, 1995).
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Signature Blocks on Following Page
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Merry Land & Investment
Company, Inc.
(Registrant)
By: /S/
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Dorrie E. Green
As Its Vice President
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MERRY LAND & INVESTMENT COMPANY, INC.
Debt Securities
Underwriting Agreement
August 28, 1995
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Merry Land & Investment Company, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture")
between the Company and the Trustee identified in such Schedule (the
"Trustee"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, relating to certain securities (the "Shelf Securities") to be
issued from time to time by the Company. The Company also has filed with,
or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the
Securities. The registration statement as amended to the date of this
Agreement is hereinafter referred to as the "Registration Statement" and
the related prospectus covering the Shelf Securities in the form first used
to confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used
to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the
basis of the representations and warranties herein contained, but subject
to the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the
purchase price set forth in Schedule I hereto plus accrued interest, if
any, from the date specified in Schedule I hereto to the date of payment
and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities
and (ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place
set forth in Schedule I hereto (or at such other time and place on the same
or such other date, not later than the third Business Day thereafter, as
you and the Company may agree in writing). Such payment will be made upon
delivery to, or to you for the respective accounts of, such Underwriters of
the Securities registered in such names and in such denominations as you
shall request not less than two full Business Days prior to the date of
delivery, with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. The time and date of such
payment and delivery with respect to the Securities are referred to herein
as the Closing Date. The certificates for the Securities will be made
available for inspection and packaging by you by 1:00 P.M. on the Business
Day prior to the Closing Date at such place in New York City as you and the
Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amend-
ment or supplement thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in 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
such Underwriter through the Representatives expressly for use
therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements
of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) the financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus, present fairly the financial position of the
Company as of the dates indicated and the results of its operations
and the changes in its consolidated cash flows for the periods
specified; the financial statements with respect to the properties
acquired or to be acquired by the Company, together with related notes
and schedules as set forth or incorporated by reference in the
Registration Statement or the Prospectus, present fairly the financial
position and the results of operations of such properties at the
indicated dates and for the indicated periods; the foregoing financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information required to be stated therein; the summary financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the financial statements presented therein; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial
position, stockholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus
the Company has not entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with power and authority (corporate and other)
to own or lease its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; except for investments in
securities as described in the Registration Statement or Prospectus,
the Company has no equity or other interest in, or rights to acquire,
an equity or other interest in any corporation, partnership, trust or
other entity;
(f) this Agreement and the Indenture have been duly authorized,
executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(g) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the
Indenture will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute a valid and
binding instrument; and the Securities and the Indenture will conform
to the statements relating thereto contained in the Prospectus;
(h) the Company is not, and with the giving of notice or lapse
of time or both would not be, in violation of or in default under, its
Articles of Incorporation or By-Laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or other instrument or
obligation to which the Company is a party or by which it or any of
its properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company or
to the holders of the Securities; the issue and sale of the Securities
and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, registra-
tions or qualifications as have been obtained under the Securities
Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company is or may be
a party or to which any property of the Company is or may be the
subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or
results of operations of the Company and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(j) the Company has good and marketable title to all of the
properties and assets reflected in the financial statements (or as
described in the Registration Statement) 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 the Registration Statement) or which are not material in
amount. The Company occupies its leased properties under valid and
binding leases conforming to the description thereof set forth in the
Registration Statement;
(k) the Company has 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 it to
the extent that such taxes have become due and are not being contested
in good faith;
(l) the Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of its business; and the Company has not infringed any
patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company;
(m) Arthur Andersen LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Securities Act;
(n) the Company has never been, is not now, and immediately
after the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(o) with respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the
Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal
Revenue Code, as amended, and the Company's present and contemplated
operations, assets and income continue to meet such requirements; and
(p) the conditions for the use of a registration statement on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transactions contemplated herein.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you pursuant to
Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request, when
filed with Commission.
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise you promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the
receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to prevent the issuance
of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities and
to pay all fees and expenses (including fees and disbursements of
counsel to the Underwriters) reasonably incurred in connection with
such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; PROVIDED that the Company shall
not be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
you as soon as practicable but not later than 15 months after the
effective date of the Registration Statement (as defined in Rule
158(c)) an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are
substantially similar to the Securities without your prior written
consent; and
(j) to pay all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (I) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including fees of counsel for the Underwriters and
their disbursements), (iv) in connection with the listing of the
Securities on any stock exchange, (v) related to any filing with
National Association of Securities Dealers, Inc., (vi) in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and ship-
ping, as herein provided and (vii) payable to rating agencies in
connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made
on and as of the Closing Date and the Company shall have complied with
all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material adverse
change or any development involving a material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to you to the effect set forth in subsections (a) through
(c) of this Section and to the further effect that there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement.
(f) Hull, Towill, Norman & Barrett, P.C., counsel for the
Company, shall have furnished to you its written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened
to which the Company is or may be a party or to which any
property of the Company is or may be the subject which, if
determined adversely to the Company, could individually or in the
aggregate reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
properties, financial position, stockholders' equity or results
of operations of the Company; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(v) the Securities have been duly authorized, and when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance
with their terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and
remedies of creditors generally and (b) equitable principles of
general applicability;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable in accordance with its
terms, except that the enforceability thereof may be limited by
or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of
creditors generally and (b) equitable principles of general
applicability; and the Indenture has been duly qualified under
the Trust Indenture Act;
(vii) the Company is not, and with the giving of notice or
lapse of time or both would not be, in violation of or in default
under, its Articles of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party
or by which it or any of its respective properties is bound,
except for violations and defaults which individually and in the
aggregate are not material to the Company or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will
any such action result in any violation of the provisions of the
Articles of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) the Company has authorized and outstanding stock as
set forth under the caption "Capitalization" in the Prospectus;
(ix) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and
the Trust Indenture Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(x) the statements in the Prospectus under the captions
"Description of Notes," "Description of Debt Securities,"
"Description of Common Stock," "Description of Preferred Stock,"
"Description of Common Stock Warrants," and "Description of
Depositary Shares" in the Prospectus and each document
incorporated by reference from Item 3 of Part 1 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1994
and in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents or proceedings;
(xi) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein
as to which such counsel need express no opinion) complied as to
form in all material respects with the Exchange Act when filed
with Commission, (B) believes that (except for the financial
statements included therein as to which such counsel need express
no belief) each part of the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did not 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, (C) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statement included
therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and (D) believes that
(except for the financial statements included therein as to which
such counsel need express no belief) the Registration Statement
and the Prospectus, on the date of this Agreement, did not
contain any 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, and that the
Prospectus as amended or supplemented, if applicable, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and
(xii) the Company is not, and will not become as a result of
the consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been an
"investment company" at any time since 1988.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Georgia, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect
to the matters to be covered in subparagraph (xi) above counsel may
state its opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the documents incorporated
by reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference therein)
but is without independent check or verification except as specified.
(g) Hull, Towill, Norman & Barrett, P.C., tax counsel for the
Company, shall have delivered to you its written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
that:
(i) the Company met the requirements for qualification and
taxation as a real estate investment trust ("REIT") for the
taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993 and 1994
subject to the qualification noted in subparagraph (ii) below;
(ii) there is an issue as to whether the Company satisfied
the 95%-distribution requirement of Section 857(a)(1) of the Code
with respect to the taxable year 1989. Such counsel believes,
however, that if the Internal Revenue Service were to assert
successfully that the Company did not meet the 95%-distribution
requirement on the basis of the foregoing issue, the Company
nevertheless would be entitled to use the deficiency dividend
procedures of Section 860 of the Code to preserve its status as a
qualified REIT for 1989 and subsequent taxable years by paying
deficiency dividends to its shareholders sufficient to meet the
95%-distribution requirement and by otherwise complying with the
requirements of Section 860 of the Code;
(iii) the Company's diversity of stock ownership and
proposed method of operation should allow it to qualify as a REIT
for 1995; and
(iv) the discussion contained under the caption "Certain
Federal Income Tax Considerations to the Company of its REIT
Election" in the Prospectus forming a part of the Registration
Statement, accurately reflects existing law and fairly addresses
the material federal income tax issues described therein.
In rendering such opinions, Hull, Towill, Norman & Barrett,
P.C. may rely as to matters of fact, to the extent they deem
proper, on certificates of officers of the Company and public
officials so long as such counsel states that no facts have come
to the attention of such counsel which lead them to believe that
they are not justified in relying on such certificates. In
addition, Hull, Towill, Norman & Barrett, P.C. may state that
their opinions are based upon the procedures and assumptions set
forth in such opinion letter and that it is limited to the tax
matters specifically covered thereby and that they have not
addressed any other tax consequences.
(h) on the Closing Date, Arthur Andersen LLP shall have
furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus;
(i) on the Closing Date, Arthur Andersen LLP shall have
furnished to you a letter confirming the matters set forth in clauses
(i), (ii) and (iii) of subparagraph (g) of this Section 6;
(j) you shall have received on and as of the Closing Date an
opinion of Piper & Marbury L.L.P., counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters; and
(k) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents confirming the representations and warranties contained
herein and related matters as the Representatives shall reasonably
request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Piper &
Marbury L.L.P., counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by 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 or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
PROVIDED, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securi-
ties if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the
sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters and such control
persons of Underwriters shall be designated in writing by the first of the
named Representative on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company or authorized repre-
sentatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (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 Securities 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 or liabilities, 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
respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other 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 or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by 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 the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by
such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in
no event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities
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 principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth
in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) there shall have occurred, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company or the earnings,
business affairs, properties, management or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii)
trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (iii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iv) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities; (v) there has occurred any downgrading in the rating of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Exchange
Act; or (vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and
which, in the judgment of the Representatives, makes it impracticable to
market the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities, the other Underwriters shall be obli-
gated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the principal amount
of Securities that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Securities to be
purchased, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case 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 in the Prospectus or in 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 default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the Under-
writers or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein con-
tained. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representative set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by
you jointly or by the first of the named Representative set forth in
Schedule I hereto alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given at
the address set forth in Schedule II hereto. Notices to the Company shall
be given to it at Merry Land & Investment Company, 624 Ellis Street,
Augusta, Georgia, Attention: Peter S. Knox III.
13. MISCELLANEOUS. This Agreement may be signed in counterparts,
each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws provisions thereof.
Very truly yours,
MERRY LAND & INVESTMENT COMPANY,
INC.
By: /S/
--------------------------------
Name: Peter S. Knox III
--------------------------------
Title: Chairman of the Board
--------------------------------
Accepted: August 28, 1995
J.P. MORGAN SECURITIES INC.
By: /S/
---------------------------
Name: Kelley Millet
---------------------------
Title: Managing Director
---------------------------
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
Underwriting Agreement dated: August 28, 1995
Registration Statement No.: 33-57453
Title of Securities: 7-1/4% Notes due 2002
Aggregate principal amount: $40,000,000
Price to Public: 99.933% of the principal amount of the
Securities, plus accrued interest, if
any, from September 1, 1995 to the
Closing Date.
Underwriting Discount: .725%
Indenture: Indenture dated as of February 1, 1995,
and the Supplemental Indenture dated
June 1, 1995, both between Merry Land &
Investment Company, Inc. and First Union
National Bank
Maturity: October 1, 2002
Interest Rate: 7-1/4%
Interest Payment Dates: April 1 and October 1
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: As specified in the Prospectus
Supplement dated August 28, 1995
relating to the Securities.
Closing Date and Time of Delivery: September 1, 1995
Closing Location: Piper & Marbury L.L.P.,
36 South Charles Street
Baltimore, Maryland
Address for Notices
to Underwriters: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
<PAGE>
SCHEDULE II
Principal Amount of
Securities
Underwriters To be Purchased
------------ -------------------
J.P. Morgan
Securities Inc. $40,000,000
===========
Total . . . . . . . . . . . . . . .$40,000,000
<PAGE>
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
MERRY LAND & INVESTMENT COMPANY, INC.
7-1/4% NOTE DUE 2002
REGISTERED PRINCIPAL AMOUNT
No.: 1 $40,000,000
CUSIP No.:
MERRY LAND & INVESTMENT COMPANY, INC., a corporation organized and
existing under the laws of the State of Georgia (hereinafter called the
"Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & Co., or registered assigns, upon presentation, the principal
sum of Forty Million Dollars ($40,000,000) on October 1, 2002 at the office
or agency of the Company referred to below, and to pay interest thereon
from September 1, 1995, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears
on April 1 and October 1 in each year, commencing April 1, 1996, at the
rate of 7-1/4% per annum, until the entire principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or
duly provided for on any Interest Payment Date will, as provided for in the
Indenture, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest which shall be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not more than 15 days and not
less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this Series may be
listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the
City of New York, Borough of Manhattan, or elsewhere as provided in the
Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
debts; PROVIDED; HOWEVER, that at the option of the Company payment of
interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer of funds to an account of the Person entitled thereto
maintained within the United States.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of February 1, 1995, as
supplemented by the First Supplemental Indenture, dated as of June 1, 1995
(as so supplemented, herein called the "Indenture"), between the Company
and First Union National Bank of Georgia, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture
with respect to the series of which this Security is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the first page hereof, limited in aggregate principal amount to
$40,000,000.
This Security may not be redeemed by the Company prior to maturity.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default
applicable to the Company, in each case, upon compliance by the Company
with certain conditions set forth in the Indenture, which provisions apply
to this Security.
If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities of this series, the Holders
of not less than 25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee,
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal
hereof or any interest on and any Additional Amounts in respect thereof on
or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in
principal amount of the Securities of each series at the time Outstanding
affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any Place of Payment
where the principal of and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this series, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any
indebtedness evidenced thereby, shall be had against any promoter, as such
or, against any past, present or future stockholder, officer or director,
as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of this Security by the Holder
thereof and as part of the consideration for the issue of the Securities of
this series.
All terms used in this security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
GEORGIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers
to be printed on the Securities of this series as convenience to the
Holders of such Securities. No representation is made as to the
correctness or accuracy of such CUSIP numbers as printed on the Securities,
and reliance may be placed only on the other identification numbers printed
hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date: September 1, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
By: /S/
-------------------------------------
Name: Peter S. Knox III
-------------------------------------
Title: Chairman of the Board
-------------------------------------
By: /S/
-------------------------------------
Name: Michael N. Thompson
-------------------------------------
Title: Vice President
-------------------------------------
Attest:
By: /S/
-------------------------------------
Name: John W. Gibson
-------------------------------------
Title: Assistant Secretary
-------------------------------------
[SEAL]
Dated: September 1, 1995
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF GEORGIA,
as Trustee
By: /S/
-------------------------------------
Authorized Officer
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
September 1, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: Public Offering of 7-1/4% Notes due 2002 of
Merry Land & Investment Company, Inc. (the "Offering")
Ladies and Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc. (the
"Company") in connection with the referenced Offering with respect to the
proposed sale of up to $40,000,000 aggregate principal amount of the
Company's 7-1/4% Notes due 2002 (the "Notes").
We are familiar with the articles of incorporation, as amended, and
by-laws of the Company, the Prospectus Supplement dated August 28, 1995
filed with Registration Statement #33-57453 (the "Prospectus Supplement"),
and have examined such additional records and public documents as we have
deemed necessary for the opinion hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Georgia.
2. All proceedings necessary to authorize the offering of the Notes
have been taken.
3. The Notes have been duly authorized, and when executed and
authenticated in accordance with the terms of the Indenture and
Supplemental Indenture and delivered to and paid for by the Underwriter in
accordance with the terms of the Underwriting Agreement between the Company
and J.P. Morgan Securities, Inc. dated August 28, 1995, will constitute
valid and binding obligations of the Company entitled to the benefits
provided by the Indenture and Supplemental Indenture, enforceable in
accordance with their terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or hereafter
existing which affect the rights and remedies of creditors generally and
(b) equitable principles of general applicability;
We hereby consent to the filing of this opinion as an exhibit to the
Form 8-K filed with respect to the Offering and reference to this opinion
in the Prospectus Supplement.
/S/
HULL, TOWILL, NORMAN
& BARRETT, P.C.
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
September 1, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: Public Offering of 7-1/4% Notes due 2002 of
Merry Land and Investment Company, Inc. (the "Offering")
Ladies and Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc. (the
"Company") in connection with the referenced Offering with respect to the
proposed sale of up to $40,000,000 aggregate principal amount of the
Company's 7-1/4% Notes due 2002 (the "Debt Securities").
We are familiar with the articles of incorporation, as amended, and
by-laws of the Company and have examined such additional records and public
documents as we have deemed necessary for the opinion hereinafter
expressed. We have been counsel to the Company for many years and are
generally familiar with its affairs. Where facts have not been
independently verified, we have relied upon statements of the Company's
officers, certificates of public officials, and records of the Company.
In rendering the opinions expressed herein, we have examined such
documents as we have deemed appropriate, including without limitation the
Company's Registration Statement on Form S-3 (File #33-57453) and the
amendments thereto, the Prospectus Supplement dated August 28, 1995, the
Company's federal income tax returns for the taxable periods to which our
opinion relates, and Company-prepared schedules which relate to the
Company's compliance with various real estate investment trust ("REIT")
qualification tests. In our examination of documents, we have assumed, with
your consent, that all documents submitted to us are authentic originals,
or if submitted as photocopies, that they faithfully reproduce the
originals thereof, that all such documents have been or will be duly
executed to the extent required, that all representations and statements
set forth in such documents are true and correct, and that all obligations
imposed by any such documents on the parties thereto have been or will be
performed or satisfied in accordance with their terms. We have also
obtained such additional information and representations as we have deemed
relevant and necessary through consultation with the officers of the
Company and with the Company's independent public accountants.
In rendering our opinion, we have assumed that during the relevant
taxable periods all persons who were required under the Securities and
Exchange Act of 1934 to file or amend Schedules 13D and 13G with respect to
the Company's outstanding shares appropriately made such filings and that
the Company was duly apprised of all such filings.
Based upon the foregoing, we are of the opinion that:
1. The Company met the requirements for qualification and taxation
as a REIT for the taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993
and 1994, subject to the qualification noted in paragraph 2 below.
2. There is an issue as to whether the Company satisfied the
"95%-distribution" requirement of Section 857(a)(1) of the Code with respect
to the taxable year 1989. We believe, however, that if the Internal Revenue
Service were to assert successfully that the Company did not meet the
95%-distribution requirement on the basis of the foregoing issue, the Company
nevertheless would be entitled to use the deficiency dividend procedures of
Section 860 of the Code to preserve its status as a qualified REIT for 1989
and subsequent taxable years by paying deficiency dividends to its
shareholders sufficient to meet the 95%-distribution requirement and by
otherwise complying with the requirements of Section 860 of the Code.
3. The Company's diversity of stock ownership and proposed method of
operation should allow it to qualify as a REIT for 1995.
4. The discussion contained in that portion of the Company's
Prospectus Supplement dated August 28, 1995 to that Prospectus filed with
Registration Statement #33-57453 (the "Prospectus Supplement") under the
caption "Certain Federal Income Tax Considerations to the Company of its
REIT Election" accurately reflects existing law and fairly addresses the
material federal income tax issues described therein. Such discussion is
hereby incorporated herein by this reference.
The opinions expressed herein are based upon the Code, the U.S.
Treasury Regulations promulgated thereunder, current administrative
positions of the U.S. Internal Revenue Service, and existing judicial
decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect the opinions
rendered herein and the tax consequences to the Company and the investors
in the Debt Securities. In addition, as noted above, our opinions are based
solely on the documents that we have examined, the additional information
that we have obtained, and the representations that have been made to us,
and cannot be relied upon if any of the facts contained in such documents
or in such additional information is, or later becomes, inaccurate or if
any of the representations made to us is, or later becomes, inaccurate. No
facts have come to our attention which lead us to believe that we are not
justified in relying upon such representations.
Finally, our opinion is limited to the tax matters specifically
covered thereby, and we have not been asked to address, nor have we
addressed, any other tax consequences of an investment in the Debt
Securities.
We hereby consent to the filing of this opinion as an exhibit to the
Form 8-K filed with respect to the Offering.
/S/
HULL, TOWILL, NORMAN
& BARRETT, P.C.
