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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
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Date of Report (Date of earliest event reported): July 28, 1997
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: July 28, 1997
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ITEM 5. OTHER EVENTS. Merry Land & Investment Company, Inc. (the
"Company") has completed the offering of $50,000,000 principal at maturity of
its 6.90% Notes due 2007 (the "Notes").The offering of the Notes was made
pursuant to a Prospectus Supplement dated July 23, 1997 relating to the
Prospectus dated January 23, 1996 filed with the Company's shelf registration
statement #33-65067 on Form S-3.
The Notes bear interest at 6.90% from July 28, 1997, with interest payable
each February 1 and August 1 beginning February 1, 1998. The entire principal
amount of the Notes is due August 1, 2007. The Notes may be redeemed at any time
at the option of the Company, in whole or in part, at a redemption price equla
to the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the redemption date and (ii) the Make-Whole Amount, if any.
The Notes were sold under an Indenture and Supplemental Indenture with
First Union National Bank of Georgia as Trustee. The underwriting discount was
0.650% for the Notes and the price to the public was 99.707% of the principal
amount of the Notes.
The net proceeds to the Company from the sale of the Notes was $49,528,500.
The Company intends to use the net proceeds to acquire and develop additional
apartment properties.
Delivery of the Notes was made on July 28, 1997 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. $50,000,000
principal at maturity of 6.90% Notes due 2007.
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 1996
10-K/A filed June 3,1997).
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 1996 10-K filed June 3, 1997).
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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/
------------------------------
Dorrie E. Green
As Its Vice President
MERRY LAND & INVESTMENT COMPANY, INC.
Debt Securities
Underwriting Agreement
July 23, 1997
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 amendment 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 fo
regoing 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 consolidated 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 and its
Subsidiaries as of the dates indicated and the consolidated results of its
operations and the changes in its 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; the subsidiary
entities of the Company identified on Schedule III hereto (the "Subsidiaries")
have been duly organized and are validly existing as corporations or limited
partnerships, as the case may be, in good standing under the laws of their
states of organization, and have been duly qualified as foreign
corporations or limited partnerships, as the case may be, for the transaction
of business and are in good standing under the laws of each other jurisdiction
in which they own or lease properties, or conduct 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 and the
Subsidiaries have 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
rospectus;
(h) neither the Company nor the Subsidiaries is, nor with the giving
of notice or lapse of time or both would be, in violation of or in default
under, their respective 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 or any Subsidiary s a party or by which they
or any of their properties are 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 or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or to
which any of the property or assets of the Company or any Subsidiary 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, registrations 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 or any Subsidiary is or may be a party
or to which any property of the Company or any Subsidiary 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 and the Subsidiaries have 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 and the
Subsidiaries occupy their 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 and the Subsidiaries hold 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
shipping, 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) the Subsidiaries have been duly organized and are
validly existing as corporations or limited partnerships, as the case may be,
in good standing under the laws of their jurisidictions of organization, with
power and authority to own their properites and conduct their business as
described in the Prospectus as amended or supplemented;
(iv) the Subsidiaries have been duly qualified as foreign
corporations or limited partnerships, as the case may be, for the transaction
of business and are in good standing under the laws of each other
jurisdiction in which they own or lease properties, or conduct 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;
(v) 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 or the Subsidiaries is or
may be a party or to which any property of the Company or the Subsidiaries is
or may be the subject which, if determined adversely to the Company, or the
Subsidiaries 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) neither the Company nor the Subsidiaries are, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, their respective 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 or any of the
Subsidiaries is a party or by which they or any of their respective properties
are 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 or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the property or assets of the Company or
any Subsidiary 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;
(x) the Company has authorized and outstanding stock as set
forth under the caption "Capitalization" in the Prospectus;
(xi) 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;
(xii) 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, 1996 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;
(xiii) 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
(xiv) 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 (xiii) 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 1990, 1991,
1992, 1993, 1994, 1995 and 1996;
(ii) the Company's diversity of stock ownership and proposed
method of operation should allow it to qualify as a REIT for 1997; 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) and (ii) 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 Securities
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 representatives 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 obligated 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 Underwriters 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 contained. 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, Inc., 624 Ellis Street, Augusta, Georgia 30901, Attention: W.
Tennent Houston.
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.
/s/
By:_______________________________________
Name: W. Tennent Houston
Title: President
Accepted: July 23, 1997
J.P. MORGAN SECURITIES INC.
/s/
By:______________________________
Name:
Title:
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc., BT Securities
Corporation, First Union Capital Markets Corp.
Underwriting Agreement dated: July 23, 1997
Registration Statement No.: 33-65067
Title of Securities: 6.90% Notes due 2007
Aggregate principal amount: $50,000,000
Price to Public: 99.707% of the principal amount of the Securities,
plus accrued interest, if any, from July 28, 1997 to
the Closing Date
Underwriting Discount: .650%
Indenture: Indenture dated as of February 1, 1995, and the
Supplemental Indenture dated as of June 1, 1995, both
between Merry Land & Investment Company, Inc.
and First Union National Bank of Georgia
Maturity: August 1, 2007
Interest Rate: 6.90%
Interest Payment Dates: February 1 and August 1
Optional Redemption Provisions: Reedeemable at anytime at the option of
the Company, in whole or in part, at a
redemption price equal to the sum of
(i) the principal amount of the
Notes being redeemed plus accrued
interest to the redemption date, plus
(ii) the Make-Whole Amount, if any
Sinking Fund Provisions: None
Other Provisions: As specified in the Prospectus Supplement
dated July 23, 1997 relating to the
Securities.
Closing Date and Time of Delivery: July 28, 1997
Closing Location: Piper & Marbury L.L.P.,
36 South Charles Street
Baltimore, Maryland 21201
Address for Notices
to Underwriters: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
<PAGE>
SCHEDULE II
Underwriter Principal Amount of Notes
To Be Purchased
J.P. Morgan Securities Inc. $30,000,000
BT Securities Corporation $10,000,000
First Union Capital Markets Corp. $10,000,000
=========
Total.................... $50,000,000
<PAGE>
SCHEDULE III
Subsidiaries
- --------------
ML Apartments Limited
Merry Land Apartment Communities, Inc.
ML Texas Apartments, L.P.
ML North Carolina Apartments, L. P.
ML Tennessee Apartments, L.P.
ML Alabama Apartments, Inc.
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.
6.90% NOTE DUE 2007
REGISTERED PRINCIPAL AMOUNT
No.: 1 $50,000,000
CUSIP No.: 590438AG2
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 Fifty
Million Dollars ($50,000,000) on August 1, 2007 at the office or agency of the
Company referred to below, and to pay interest thereon from July 28, 1997, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on February 1 and August 1 in
each year, commencing February 1, 1998, at the rate of 6.90% 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 January 15 or July 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, Make-Whole Amount, if any, 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 $50,000,000.
Securities of this series may be redeemed at any time at the option of the
Company, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of
each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date
such notice of redemption is given or declaration of acceleration is made)
from the respective dates on which such principal and interest would have
been payable if such redemption or accelerated payment had not been made,
over (ii) the aggregate principal amount of the Securities being redeemed or
paid.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one percent)
plus the arithmetic mean of the yields under the respective headings "This
Week" and "Last Week" published in the Statistical Release under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding
to such maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding in each of such relevant periods
to the nearest month. For purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of determination of
the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States
government securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
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, and the Make-Whole Amount, if any,
on 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 (and premium or Make-Whole Amount, if any)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, Make-Whole Amount, if
any, 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, Make-Whole Amount, if any, 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: July 28, 1997
MERRY LAND & INVESTMENT
COMPANY, INC.
By: /s/
- -----------------------------------------
Name: W. Tennent Houston
Title: President
Attest:
By: /s/
- -----------------------------------------
Name: Mark S. Burgreen
Title: Assistant Secretary
[SEAL]
Dated: July 28, 1997
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, as
Trustee
By: /s/
- --------------------------
Authorized Officer
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
July 28, 1997
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: MERRY LAND & INVESTMENT COMPANY, INC.: Public Offering of
$50,000,000 principal amount at maturity of 6.90% Notes due 2007
(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 $50,000,000 principal amount at maturity of
6.90% Notes due 2007 (the "Notes").
We are familiar with the articles of incorporation, as amended, and
by-laws of the Company, the Prospectus Supplement dated July 23, 1997 filed
with Registration Statement #33-65067 (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 has 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., BT Securities Corporation and First Union
Capital Markets Corp. dated July 23, 1997, 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.]
July 28, 1997
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: MERRY LAND & INVESTMENT COMPANY, INC.: Public Offering of
$50,000,000 principal amount at maturity of 6.90% Notes due 2007
(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 $50,000,000 principal amount at maturity of
6.90% Notes due 2007 (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 #33-65067) and the
amendments thereto, the Prospectus Supplement dated July 23, 1997, 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 1990 - 1996.
2. The Company's diversity of stock ownership and proposed method of
operation should allow it to qualify as a REIT for 1997.
3. The discussion contained in that portion of the Company's
Prospectus Supplement dated July 23, 1997 to that Prospectus filed with
Registration Statement #33-65067 (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.
