Exhibit E
STATE OF MISSISSIPPI
COUNTY OF XXXXXXX
$37,000,000
SUBORDINATE LAND DEED OF TRUST
THIS INDENTURE, made and entered into this day by and among Gulf Power
Company whose address is 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000, as Grantor
(herein designated as "Debtor"), Xxx X. Xxxxx, as Trustee, and Escambia County,
Florida, as beneficiary (herein designated as "Secured Party"),
WITNESSETH:
WHEREAS, Debtor is indebted to Secured Party in the full principal sum
of Thirty-Seven Million Dollars ($37,000,000) evidenced by Debtor's Promissory
Note issued of even date herewith in favor of Secured Party (the "Note")
pursuant to the Loan Agreement between Debtor and Secured Party dated as of July
1, 1997, said indebtedness bearing interest as specified in the Note being due
and payable as set forth in the above described Loan Agreement and Note. Unless
sooner paid, the final maturity date of the indebtedness evidenced by the said
Note is July 1, 2022.
NOW, THEREFORE, in consideration of the Indebtedness and obligations
herein recited, Debtor hereby conveys and warrants unto Trustee, Debtor's
undivided one-half (1/2) interest in the land together with all improvements
thereon described below situated in the County of Xxxxxxx, State of Mississippi:
A steam plant site at or near Xxxxxxx Bluff in Xxxxxxx County,
Mississippi, or known as the Xxxxxxx County Steam Plant site ("Plant
Xxxxxx X. Xxxxxx") on land recorded in the office of the Chancery Clerk
of Xxxxxxx County and described as follows:
Section 15 Township 6 South Range 6 West
Lots 1 and 2 as recorded in Book 416 Page 299 and Book 428
Page 259.
Section 14 Township 6 South Range 6 West
Beginning at the Northeast corner of Section 14, Township 6
South, Range 6 West, and run thence South along the East line
of said Section 14 a distance of 2030 feet to a point, run
thence West a distance of 380 feet to a point, thence South 3
degrees 30 minutes East a distance of 125 feet to a point, run
thence West a distance of 730 feet to Xxxxx Bayou, run thence
Southwesterly along the meanderings of Xxxxx Bayou 6,560 feet,
more or less, to the Southwest corner of Section 14, thence
North along the West section line of Section 14 to the
Northwest corner of said section, thence run East along the
North line of Section 14 a distance of 5251 feet, more or
less, to the Northeast corner of said Section 14 and the Point
of Beginning, less and except that part to Miss. State Highway
Dept. recorded in Book 172 Pages 585-6, all as recorded in
Book 439 Page 467-70.
Section 11 Township 6 South Range 6 West
All that part of the XX 0/0 xx XX 0/0 Xxxx xx Xxxxxxxxxxx
Xxxxx Xxxxxxx 00; all of Section 00 Xxxx xx Xxxxxxx 63 all
being recorded in Book 439 Page 467-70, Book 434 Page 601,
Book 434 Page 664, Book 434 Page 600, Book 442 Page 155, and
Book 441 Page 327.
Section 10 Township 6 South Range 6 West
All of the entire Section as recorded in Book 428 Page 259,
Book 448 Page 288, Book 449 Page 418, Book 449 Page 507.
Section 9 Township 6 South Range 6 West
All that part East of Pascagoula River as recorded in Book 428
Page 259.
Section 4 Township 6 South Range 6 West
All that part East of Pascagoula River and South of Xxxxxx
Bayou, as recorded in Book 428 Page 259.
Section 37 Township 6 South Range 6 West
All that part of Xxxxx Xxxxxxx Private Claim 37 that would
have been the S 1/2 of Regular Section 3, if regularly
surveyed, less and except that part lying Northwest of Xxxxxx
Bayou as recorded in Book 428 Page 259.
Section 2 Township 6 South Range 6 West
All that part of the SW 1/4 of Section 2 lying West of Highway
63 as recorded in Book 417 Page 468, Book 419 Page 57, Book
444 Page 36, Book 414 Page 163, Book 419 Page 557, Book 423
Page 160, Book 448 Page 282, Book 455 Page 401 and Book 455
Page 400.
A tract of land in the X. Xxxxxxx Claim, Section Thirty-five (35) and
the Kirkwood Claim, Section Forty-two (42), both in Township Five (5)
South, Range Six (6) West, Xxxxxxx County, described as follows:
Beginning at a point 75 feet West of the Southeast corner of
the X. Xxxxxxx Claim Section 35, Township 5 South, Range 6
West, on the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63) and thence run
West along the South boundary line of the aforesaid X. Xxxxxxx
Claim No. 35, 1575 feet; thence North 1609.50 feet; thence
East 295 feet; thence South 69 degrees and 19 minutes East 885
feet to the West margin of the County Road known as "River
Road" (Now Mississippi State Highway No. 63); thence Southerly
along the West margin of said Road South 6 degrees and 24
minutes West 100 feet; thence South 1 degree and 34 minutes
East 100 feet; thence South 7 degrees and 44 minutes East 100
feet; thence South 9 degrees and 33 minutes East 100 feet;
thence South 12 degrees and 46 minutes East 200 feet; thence
South 16 degrees and 30 minutes East 100 feet; thence South 25
degrees and 12 minutes East 100 feet; thence South 30 degrees
and 45 minutes East 200 feet; thence South 34 degrees and 22
minutes East 300 feet; thence South 23 degrees and 20 minutes
East 108.7 feet to the point of beginning.
LESS AND EXCEPT those certain parcels sold to Xxxxx Xxxxxx
Xxxxxx and sold to Xxxxx Xxxx Xxxxxx and wife all as recorded
in Deed Book 250 Page 336
394 168 and 171
399 420
407 170
LESS AND EXCEPT any part of the above described land which
lies East of the New Mississippi Xxxxxxx Xx. 00 as now laid
out and used. As recorded in Book 423 Page 157,
together with all improvements and appurtenances now or hereafter erected on,
and all fixtures of any and every description now or hereafter attached to, said
land (all being herein referred to as the "Property"). Debtor reserves the right
to execute with Trustee (without the consent of Secured Party), an amendment to
this instrument substituting for the property collateral having a value in the
judgment of Debtor not less than the then unpaid principal amount of the Note.
THIS CONVEYANCE, HOWEVER, IS IN TRUST to secure prompt performance by
Debtor to Secured Party as described hereinabove under the provisions of this
Deed of Trust. If Debtor shall discharge its obligation to Secured Party
according to the tenor of the Loan Agreement and Note described hereinabove and
shall perform all covenants made by Debtor to Secured Party herein, then this
conveyance shall be void and of no effect. If Debtor shall be in default in the
performance of its obligations under its Loan Agreement and Note described
hereinabove, then, in that event, Trustee shall, at the request of Secured
Party, sell the Property conveyed, or a sufficiency thereof, to satisfy the
Indebtedness at public outcry to the highest bidder for cash. Sale of the
property shall be advertised for three consecutive weeks preceding the sale in a
newspaper published in the county where the Property is situated, or if none is
so published, then in some newspaper having a general circulation therein, and
by posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original Debtor in this
Deed of Trust.
Secured Party shall have the same right to purchase the property at the
foreclosure sale as would a purchaser who is not a party to this Deed of Trust.
Debtor waives the provisions of Section 89-1-55 of the Mississippi Code of 1972,
as amended, if any, as far as this section restricts the right of Trustee to
offer at sale more than 160 acres at a time, and Trustee may offer the property
herein as a whole, regardless of how it is described.
From the proceeds of the sale Trustee shall first pay all costs of the
sale including reasonable compensation to Trustee; then the Indebtedness due
Secured Party by Debtor, including accrued interest and attorney's fees due for
collection of the debt; and then, lastly, any balance remaining to Debtor.
IT IS AGREED that this conveyance is made subject to the covenants,
stipulations and conditions set forth below which shall be binding upon all
parties hereto.
1. Debtor shall pay all taxes and assessments, general or special,
levied against the Property or upon the interest of Trustee or Secured Party
therein, during the term of this Deed of Trust before such taxes or assessments
become delinquent, except to the extent the same may be contested.
2. Debtor shall keep the Property in good repair and shall not permit
or commit waste, impairment or deterioration thereof. Debtor shall use the
Property for lawful purposes only.
3. Debtor shall be in default under the provisions of this Deed of
Trust if Debtor shall default in the performance according to the tenor of the
Loan Agreement and Note described hereinabove.
4. Secured Party may by giving 30 days written notice to the original
or any successor Trustee, and to Debtor, appoint another person or succession of
persons to act as Trustee, and such appointee in the execution of this trust
shall have all the powers vested in and obligations imposed upon Trustee.
5. This Deed of Trust and the rights of the Secured Party hereunder are
subordinate in their entirety to the lien of that certain Mortgage Indenture
dated as of September 1, 1941 and recorded in the Records of the Mortgages and
Deeds of Trust on Land in Xxxxxxx County, Mississippi, executed by the Debtor
named herein, with The Chase Manhattan Bank, as Trustee for the benefit of the
holders of certain obligations of Debtor (the "Trust Indenture"). This Deed of
Trust, and the rights of the Secured Party hereunder, are also subordinate to
the rights of the Trustee named in the Trust Indenture and the parties secured
thereby with respect to any future indebtedness issued by the Debtor and secured
by the Trust Indenture as it is now constituted and as it may be subsequently
supplemented and/or amended. In the event the Debtor shall elect to sell all or
part of the property secured hereby and Debtor's obligations secured by the
Trust Indenture shall not have been fully satisfied at the time of such sale,
the entire proceeds from such a sale shall be paid over by Debtor to the Trustee
under the Trust Indenture and the Secured Party named herein shall have no right
to receive any part thereof unless and until all obligations then secured by the
Trust Indenture shall be fully paid. A release by the Trustee named in the Trust
Indenture, or any successor thereto, of all or of any of such property so sold
shall constitute a release of the lien of this Deed of Trust by the Secured
Party named herein; Secured Party, by accepting this Deed of Trust, hereby
appoints the Trustee for the Trust Indenture as its agent and attorney-in-fact
for the purpose of releasing from the lien of this Deed of Trust all or any
parts of the property described herein in the event of a sale of all or any part
thereof by the Debtor; and, in such event, Secured Party disclaims any right to
receive any of the proceeds from any such sale unless Debtor shall at the time
be in default under the terms of its Note secured hereby; and then only to the
extent that all of the obligations of the Debtor then secured by the Trust
Indenture are first satisfied.
6. Notices required herein from Secured Party to Debtor shall be sent
to the address of Debtor shown in this Deed of Trust.
IN WITNESS WHEREOF, Debtor has executed this Deed of Trust on the 1st
day of July, 1997.
Attest: GULF POWER COMPANY, Debtor
By: By:
Its:
(SEAL)
STATE OF __________
COUNTY OF _____________
PERSONALLY appeared before me, the undersigned authority in and for the
said county and state, on this 1st day of July, 1997, within my jurisdiction,
the within named _____________ ___________________ and
_______________________________________, who acknowledged that they are the Vice
President and Assistant Secretary respectively of Gulf Power Company, a Maine
corporation, and that for and on behalf of the said corporation, and as its act
and deed they executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
(SEAL)
Indexing Instructions: All quarter quarter
sections in Sections 15, 14, 11, 10,
9, 4, 37 and 2, all in Township 6
South, Range 6 West; and all quarter
quarter sections in the X. Xxxxxxx
Claim, Section 35, and the Kirkwood
Claim, Section 42, both in Township
5 South, Range 6 West, Xxxxxxx
County, Mississippi.
Instrument Prepared by: Xxxxxx X. Xxxxxxx, Xxxxx and Xxxxxxxx, P.A., 0000
Xxxxxx-Xxxxx Xxxxxx, X.X. Xxx 000,
Xxxxxxxx, XX 00000; (000) 000-0000
STATE OF ___________
COUNTY OF ____________
TRANSFER AND ASSIGNMENT
For value received the undersigned hereby transfers, assigns, and
conveys without recourse unto First Union National Bank, as "Trustee" pursuant
to that certain Trust Indenture dated as of July 1, 1997, between Escambia
County, Florida, and First Union National Bank, all its right, title, interest,
powers and options in, to and under the within Subordinate Land Deed of Trust
from Gulf Power Company to the undersigned as well as to the land described
therein and the indebtedness secured thereby.
IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal
as of July 1, 1997.
ESCAMBIA COUNTY, FLORIDA
Signed, sealed and By:
delivered in the Title:
presence of:
Attest:
Witness Title:
Notary Public
Commission Data:
