MERRY LAND & INVESTMENT COMPANY, INC.
Debt Securities
Underwriting Agreement
November 3, 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 Commis-
sion 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 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 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 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 Prospectus;
(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 is 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) Xxxxxx Xxxxxxxx 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 incorpo-
rated 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 Prospec-
tus 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 purchas-
er, 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 contin-
ue 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 connec-
tion 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 Securi-
ties 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, execu-
tion, authentication and delivery of the Securities, includ-
ing 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 prelimi-
nary prospectus (including in each case all exhibits, amend-
ments 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 Memo-
xxxxx 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 hereun-
der 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 regula-
tions 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 af-
fairs, 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, Xxxxxx, Xxxxxx & Xxxxxxx, 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 qualifica-
tion, 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 jurisdictions of organization,
with power and authority to own their properties 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, author-
izations, registrations or qualifications as have been
obtained under the Securities Act and the Trust Inden-
ture 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, 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;
(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, Xxxxxx, Xxxxxx & Xxxxxxx, 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, Xxxxxx, Xxxxxx & Xxxxxxx,
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, Xxxxxx, Xxxxxx & Xxxxxxx, 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, Xxxxxx Xxxxxxxx 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, Xxxxxx Xxxxxxxx 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 connec-
tion 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 prelimi-
nary 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 informa-
tion 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 supple-
ment 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 proceed-
ing, 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 Indemni-
fying 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 there-
under, 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 aggre-
gate 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 para-
graph. 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 in-
clude, 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 omis-
sion. 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 Agree-
ment 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 authori-
ties; (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 para-
graph 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., 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx X. Xxxx 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: Xxxxx X. Xxxx III
Title: Chairman of the Board
Accepted: November 3, 1995
X.X. XXXXXX SECURITIES INC.
By: /s/
---------------------------
Name:
Title:
SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc.
and Alex. Xxxxx & Sons
Incorporated
Underwriting Agreement dated: November 3, 1995
Registration Statement No.: 33-57453
Title of Securities: 6.875% Notes due 2003;
6.875% Notes due 0000
Xxxxxxxxx principal amount: 2003 Notes: $40,000,000;
2004 Notes: $40,000,000
Price to Public: 2003 Notes: 6.875% of the
principal amount of the
Securities, plus accrued
interest, if any, from
November 8, 1995 to the
Closing Date
2004 Notes: 6.875% of the
principal amount of the
Securities, plus accrued
interest, if any, from
November 8, 1995 to the
Closing Date
Underwriting Discount: 2003 Notes: 6.875%;
2004 Notes: 6.875%
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: 2003 Notes: November 1, 2003;
2004 Notes: November 1, 2004
Interest Rate: 2003 Notes: 6.875%;
2004 Notes: 6.875%.
Interest Payment Dates: May 1 and November 1
Optional Redemption Provisions: None
Sinking Fund Provisions: None
Other Provisions: As specified in the Prospectus
Supplement dated November 3,
1995 relating to the
Securities.
Closing Date: November 8, 1995
Closing Location: Piper & Marbury L.L.P.,
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Address for Notices
to Underwriters: c/o X.X. Xxxxxx Securities
Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE II
Principal Amount of 2003 Notes
Underwriter To Be Purchased
----------- ------------------------------
X.X. Xxxxxx Securities Inc. $20,000,000
Alex. Xxxxx & Sons Incorporated $20,000,000
===========
Total.......................... $40,000,000
Principal Amount of 2004 Notes
Underwriter To Be Purchased
----------- ------------------------------
X.X. Xxxxxx Securities Inc. $20,000,000
Alex. Xxxxx & Sons Incorporated $20,000,000
===========
Total.......................... $40,000,000
SCHEDULE III
Subsidiaries
------------
Merry Land Apartment Communities, Inc.
ML Apartments Limited
Jefferson at Cedar Springs, X.X.
Xxxxxxxxx at Round Grove, X.X.
Xxxxxxxxx on the Parkway/Dallas, L.P.
