MARYLAND AND WASHINGTON DIVISION.
FIVE PER CENT. FIRST MORTGAGE.
af dir pdttgitgd.
*-«-4
Norfolk anb ÏDeetern Hatlroab ííompang
to
€1)«^ illercanttU €ru0t Compang.
Dated December ISth^ 1890.
Allen, Lane & Scott, Printers, Philadelphia.
€í)Í0 ^nömttire, Made the fifteenth day of December,
A. D. one thousand eight hundred and ninety, between the
Norfolk anb ttJostern Kailroob Compang, of the first part,
and ®l)e mercantile Srnst (iomgang, a corporation organized
under the laws of the State of New York, of the second
part :
03l)ereaô, The Shenandoah Valley Railroad Company was
incorporated under an act of the General Assembly of Vir¬
ginia, entitled An act to incorporate The Shenandoah Valley
Railroad CompanyP passed February 23d, 1867, and under the
authority of said act and other legislation of the State of Vir¬
ginia supplemental and in addition thereto, and under an act
of the Legislature of the State of West Virginia, entitled Afi
act to anthorize The Shenandoah Valley Railroad Coinpany to
construct their road through the State of West Virginia to
the Potomac River ; and to authorize the Board of Supervis-»
or s of Jefferson County to suhnit to a vote of the people^ at a
special election^ the question of a sub scrip tioîi to the capital
stock of the said companyP passed February 25th, 1870, and
other acts supplemental and in addition thereto, and under
an act of the State of Maryland, approved April 4th, 1870,
and another act supplemental thereto. The Shenandoah Val¬
ley Railroad Company constructed and equipped, owned and
operated a railroad beginning at a point at or near Hagers-
town in Washington County, in the State of Maryland, and
extending thence through Washington County, in the State
of Maryland, to a point on the Potomac River at or near
Shepherdstown, in the State of West Virginia; thence
through Jefferson County, in the State of West Virginia, and
through the Counties of Clarke, Warren, Page, Rockingham
and Augusta, in the State of Virginia, to a point of intersec¬
tion with the Chesapeake and Ohio Railroad at or near
Waynesboro, and crossing said railroad and extending thence
through the counties of Augusta, Rockbridge, Botetourt
2
and Roanoke, in said State, to a point of intersection with
the Norfolk and Western Railroad at or near Roanoke, with
certain branches therefrom, making together about two hun¬
dred and fifty-five and one-half miles of single-track railroad ;
Under and by virtue of certain statutes of
the States of Virginia and West Virginia in such case made
and provided, the Shenandoah Valley Railway Company
was created a corporation and was named in a certain deed
of conveyance to it from the Fidelity Insurance, Trust and
Safe Deposit Company, trustee, and A. Moore, Jr., special
commissioner, dated the twenty-ninth day of November, 1890,
and duly recorded, and succeeded to and became the owner
of the said line of railroad of The Shenandoah Valley
Railroad Company, together with all branches, sidings and
other appurtenances of the said line of railroad, with the
tolls, incomes, rents, issues and profits thereof, and all real
estate, rights of way, easements, fixtures, rolling stock, ma¬
chinery, tools and equipments, and all other personal prop¬
erty thereto belonging, and all property, real, personal and
mixed, and all corporate powers and franchises belonging or
appertaining to the said The Shenandoah Valley Railroad
Company ;
iXlt)erea9^ The Washington and Western Railroad Com¬
pany was incorporated under an act of the General Assembly
of Virginia, approved December 20th, 1889, entitled '"''An
act to incorporate the Washington and Western Railroad Com¬
pany P with authority and power to locate, construct, equip
and operate a railroad commencing at a point on or near the
Potomac River, opposite to or in the vicinity of Washington,
District of Columbia, running thence to a point in Virginia on
the line of The Shenandoah Valley Railroad Company, to be
thereafter determined by the stockholders and directors of the
Washington and Western Railroad Company, with the right
to extend the same to the West Virginia State line by such
route as might be deemed most advisable by the directors of
said company ;
3
iXlt)ereaöi By articles of consolidation and merger,
dated the second day of December, 1890, between the said
Washington and Western Railroad Company and the said
Shenandoah Valley Railway Company, duly authorized, exe¬
cuted, acknowledged and delivered, the capital stock, prop¬
erty, rights, franchises and privileges of the Washington
and Western Railroad Company were consolidated with and
merged into the capital stock, property, rights, franchises and
privileges of the Shenandoah Valley Railway Company, as
will more fully and at large appear by reference to a copy of
said articles of consolidation and merger filed in the office of
the Board of Public Works of Virginia on the ninth day of
December, 1890;
The said Shenandoah Valley Railway
Company, in exercise of the powers in that behalf possessed
by it under the laws of the States of Virginia, West Virginia,
and Mar3/land, and in accordance with the resolutions duly
adopted by its stockholders and its board of directors, at
meetings of the said stockholders and board of directors duly
and regularly called and held, by deed dated the fifteenth
day of December, 1890, and intended forthwith to be re¬
corded, has sold and conveyed to the Norfolk and West¬
ern Railroad Company all its railroads, property, franchises,
rights, powers and privileges, including the capital stock,
property, rights, franchises and privileges of the Wash¬
ington and Western Railroad Company, consolidated and
merged with and into it, and the Norfolk and Western Rail¬
road Company, in exercise of the powers in that behalf pos¬
sessed by it, and in accordance with resolutions duly adopted
by its stockholders and board of directors, at meetings of the
stockholders and board of directors duly and regularly called
and held, has purchased the railroad, property, franchises,
rights, powers and privileges of the Shenandoah Valley Rail¬
way Company ;
^nb tX)l)erea0, The deed executed by the said Shenandoah
Valley Railway Company to the said Norfolk and Western
Railroad Company of the said railroad, property, franchises.
4
rights, powers and privileges formerly of The Shenandoah
Valley Railroad Company together with the capital stock,
property, rights, franchises and privileges of the Wash¬
ington and Western Railroad Company, consolidated and
merged with and unto it, bears even date herewith, but was
executed and delivered prior to the execution and delivery
hereof ; and it was made one of the terms, conditions and
considerations thereof, as will appear by reference thereto,
that the Norfolk and Western Railroad Company should,
contemporaneously with the execution and delivery of the said
deed of conveyance create an issue of bonds to the amount
of ten million dollars, bearing interest at the rate of five
per cent, per annum, from January ist, 1891, and matur¬
ing January ist, 1941, to be known as its Maryland and
Washingt07î Division—First Mortgage Five Per Cent. Gold
Bonds^ and should execute, under the same date as the date
of the said deed of conveyance, to secure said bonds, a deed
of trust or mortgage to The Mercantile Trust Company of
New York, as trustee, of and upon all the railroad, prop¬
erty and franchises acquired by the Norfolk and Western
Railroad Company under said deed of conveyance from
the said Shenandoah Valley Railway Company, and of and
upon any extension of said railroad to Washington, D. C.,
and any terminals in the District of Columbia and any ex¬
tensions, short branches and improvements that might be
thereafter acquired with the proceeds of any of said bonds,
and that the said deed of trust or mortgage should be, to
secure said bonds issued and to be issued under the same, a
first lien and charge prior to all other liens and charges upon
said premises, so that the said mortgage should be, and
for all purposes have the same effect and be entitled to the
same equities as a purchase-money mortgage to secure the
price agreed to be paid for the property conveyed—of which
bonds seven million five hundred thousand dollars were to be
issued and delivered to the purchasing committee hereinafter
mentioned which has constituted the said Shenandoah Valley
Railway Company as one of the considerations for the said con¬
veyance, and the remainder, two million five hundred thousand
dollars, were to be set apart, used and applied in the manner
5
hereinafter set forth, to provide for building an extension or
branch of the railroad conveyed by the said deed, to a point
at or near the Potomac River, opposite Washington, D. Q, and
to provide for continuing the said extension or branch into
Washington from a point opposite Washington, at or near
the Potomac River, and the acquisition of terminals in the
District of Columbia ;
%tib ti)l)erea0, The Norfolk and Western Railroad Com¬
pany has, in order to comply with the terms, conditions
and considerations of said sale to and purchase by it, author¬
ized the making, execution and delivery to The Mercan¬
tile Trust Company of New York, as trustee, of a deed of
trust or mortgage of all and singular the railroad, property
franchises, rights, powers and privileges acquired by it under
the said deed of conveyance to it from the Shenandoah Val¬
ley Railway Company which deed of trust or mortgage shall
be known as the ^'Norfolk and Western Railroad Company's
Maryland and Washington Division First MortgageP and shall
be and is hereby declared to be a continuing lien to secure the
full and final payment of all bonds which may from time to
time be created, issued, and negotiated under the security of
the same, so that, however, the total amount so created,
issued, and negotiated shall not at any one time exceed
in the aggregate ten million dollars—that is to say, as
well the bonds first issued as those which may be made
and issued from time to time after payment of the whole
or any portion thereof, or of any subsequent issue or issues,
but never to exceed at any one time ten million dollars—
which said bonds so to be issued shall be of the denomina¬
tion of one thousand dollars in gold coin of the United
States, or of such other denominations as the said Norfolk
and Western Railroad Company may by its board of di¬
rectors determine, shall be numbered consecutively from one
upwards, shall be issued at such times, in such series, shall ma¬
ture at such date or dates, and shall bear such rate of interest
not exceeding five per centum per annum, and be coupon or
registered, of such form or forms, tenor and effect as the
6
said company may by its board of directors determine at
the time of the issue thereof respectively, but none of the
said bonds to mature before January ist, 1941 ; and the said
deed of trust or mortgage shall be for the benefit and secur¬
ity of and in trust for the holders of the said bonds, without
preference, priority or distinction as to lien or otherwise of
any over another, so that each and all of the said bonds to
be issued as aforesaid shall have the same right, lien and priv¬
ilege under and by the said deed of trust or mortgage, and
shall be all equally secured thereby, with like effect as though
they had all been made, executed, delivered and negotiated
simultaneously on the date of the said deed of trust or mort¬
gage to secure the payment of the same ;
iûDllcreao, The bonds to the amount of ten million
dollars, to be forthwith made and to be forthwith issued
under the security of the said deed of trust of trust or mort¬
gage as soon as the said deed of trust or mortgage shall
have been executed and delivered, will be for the denomi¬
nations oí five hundred dollars and one thousand dollars each,
or either, payable in United States gold coin of the present
standard of weight and fineness, bearing interest at the rate
of five per cent, per annum from January ist, 1891, and num¬
bered from i upward, and in general form and substance as
follows :—
United States of America.
No. States of Virginia and West Virginia, $
NORFOLK AND WESTERN RAILROAD
COMPANY.
maryland and washington division.
First Mortgage five per cent. Gold Bond.
'^The Norfolk and Western Railroad Company acknowl¬
edges itself indebted to The Mercantile Trust Company of
New York, or bearer, or, if registered, to the registered
holder hereof, in the principal sum of $ , which indebt¬
edness it promises to pay in United States gold coin of the
7
present standard of weight and fineness, on the first day of
January, 1941, at the office or agency of the said- Norfolk
and Western Railroad Company in the city of Philadelphia
or New York, and also to pay meanwhile, in like gold coin,
at the office or agency of the railroad company in Philadel¬
phia or New York, interest on said principal sum half-yearly
on the first days of January and July in each year, at the rate
of five per centum per annum, on the presentation and sur¬
render of the coupons annexed as they severally become due.
This bond is one of a series of bonds, numbered con¬
secutively from one upwards, not to exceed in the aggregate
10,000,000, the payment of all of which is secured by a
deed of trust or mortgage bearing even date herewith, made
by the Norfolk and Western Railroad Company to The
Mercantile Trust Company of New York, to which reference
is hereby made for a description of the roads, property and
franchises mortgaged, and the nature and extent of the security
and the rights of the holders of said bonds under the same,
and for the provisions thereof, and terms and conditions upon
which the said bonds are issued and secured.
" The principal and interest of this bond are payable with¬
out deduction for any United States or State tax whatsoever,
which the said railroad company is or may be required bylaw
to retain therefrom, the said railroad company hereby agree¬
ing to pay the same.
" This bond shall pass by delivery or by transfer on the
hooks of the said Norfolk and Western Railroad Com¬
pany, but after a registration of ownership, certified hereon by
the secretary or transfer agent of the said railroad company,
no transfer, except on its books, shall be valid unless the last
preceding transfer shall have been to bearer and transferability
by delivery has been thereby restored ; but this bond shall
continue susceptible of successive registrations to bearer at
the option of the holder, and registry shall not restrain the
negotiability of the coupons by delivery merely.
" This bond shall not become valid until the certificate in¬
dorsed hereon shall have been signed by or on behalf of the
trustee under said mortgage or deed of trust.
8
. " In Witness Whereof, The Norfolk and Western Rail¬
road Company has caused its corporate seal to be affixed, and
this bond to be signed by its president and secretary,,
the day of in the year 189 ,
" Norfolk and Western Railroad Company,
By
Presidents
Attest :
Secretary!
With coupons thereto attached for interest thereon, to be¬
come payable semi-annually from January ist, 1891, up to and
including January ist, 1941, in general form and substance as
follows, except as to the date of payment:—
(Coupon.)
The Norfolk and Western Railroad Company will pay
to the bearer, on the first day of at its office
or agency in the city of Philadelphia or New York,
dollars in gold coin, being six months' interest on its
Maryland and Washington Division first mortgage gold bond
No.
Treasurer!"
And with a certificate thereon of the trustee, in general
form and substance as follows :—
(Trustee's Certificate.)
" This bond is one of those issued under and secured by
the mortga-ge or deed of trust within mentioned, and made
by the Norfolk and Western Railroad Company to The
Mercantile Trust Company of New York, trustee.
'*The Mercantile Trust Company, Trustee,
By
President!
9
tÍ)\)CXCOíBf The general form and substance of all other
bonds which may be, from time to time, issued under the se¬
curity of this deed of trust or mortgage, shall be as nearly
similar to the above form as circumstances shall, at the time
of the issue of the same, warrant or permit ;
tt)l)erea0, The aggregate amount of all the bonds se¬
cured by this deed of trust or mortgage shall at no time
exceed ten million dollars, but may at all times be equal to*
the sum of ten million dollars ; and after the payment and
cancellation of the said bonds to be immediately issued or to*
be hereafter issued under this deed of trust or mortgage or
any portion thereof, an equal amount of bonds may, at the
option of the party of the first part, be made and issued by
the party of the first part in lieu of or substitution for any
which may have been paid and cancelled, and any and all
bonds so issued in lieu or substitution shall be entitled to all
the security of this deed of trust or mortgage which is
given to the bonds first issued thereunder—it being intended
that the whole amount of bonds to be secured by this deed
of trust or mortgage shall not exceed at any time ten million
dollars, but that they may, at the option of the party of the
first part, at all times be kept up to that amount, and that this
deed of trust or mortgage shall be a continuing security for
such bonds as may hereafter be issued thereunder, as well as
for the series or issue which it is now proposed to issue ;
ÍBl)erea0, All the bonds intended to be secured by this
deed of trust or mortgage, as well those now authorized to be
issued as those which may be made and issued from time ta
time after the payment of the whole or any portion of those
now authorized to be issued, shall from time to time be made,,
executed, and issued when and as authorized by resolution of
the board of directors of the party of the first part ;
The Norfolk and Western Railroad Com¬
pany has determined to make and issue its mortgage bonds
under and pursuant to the said recited authority of its stock¬
holders :
lO
Noto tl)Í0 Snùeuture iJüitnesaetl), That the said Norfolk and
Western Railroad Company, as well in consideration of the
premises, and for the purpose of securing the payment of the
principal and interest of the said bonds when and as the same
shall become due and payable according to the tenor and effect
of the said bonds so to be made and executed, from time to
time, for a sum not exceeding in the aggregate of such issues
the sum of ten million dollars (both the said principal and
interest being payable in gold), and such taxes upon the said
principal and interest of said bonds as the Norfolk and
Western Railroad Company shall agree in said bonds or any
of them to pay, as in consideration of the sum of one dollar
lawful money of the United States unto it well and truly paid
by the said The Mercantile Trust Company of New York at
the time of the execution hereof, the receipt whereof is hereby
acknowledged, has granted, bargained, sold, assigned, set over,
released, conveyed and confirmed, and by these presents, in
pursuance and execution of the power and authority in it in
anywise vested and in this behalf enabling, does grant, bar¬
gain, sell, assign, set over, release, convey and confirm unto
the said The Mercantile Trust Company of New York, as
trustee aforesaid, and to its lawful successors or successor in
the trusts hereby created, and their heirs, executors, admin¬
istrators, and assigns, forever :
CLXib sitigular, the railroad lately of the said Shenan¬
doah Valley Railway Company (and previously of The Shen¬
andoah Valley Railroad Company), beginning at a point at
or near Hagerstown in Washington County, in the State of
Maryland, and extending thence through Washington County,
in the State of Maryland, to a point on the Potomac River at
or near Shepherdstown, in the State of West Virginia, thence
through Jefferson County, in the State of West Virginia, and
through the counties of Clarke, Warren, Page, Rockingham
and Augusta, in the State of Virginia, to a point of intersec¬
tion with the Chesapeake and Ohio Railroad at or near
Waynesboro, and crossing said railroad and extending thence
through the counties of Augusta, Rockbridge, Botetourt and
II
Roanoke, in said State, to a point of intersection with the
Norfolk and Western Railroad at or near Roanoke, with cer¬
tain branches therefrom, making together about two hundred
and fifty-five and one-half miles of single-track railroad, to¬
gether with all branches, sidings and other appurtenances of
the said line of railroad, with the tolls, incomes, rents, issues
and profits thereof, and all real estate, rights of way, ease¬
ments, fixtures, rolling stock, machinery, tools and equip¬
ments, and all other personal property thereto belonging, and
all property, real, personal and mixed, and all corporate
powers and franchises heretofore belonging or appertaining
to the said railroad lately of the Shenandoah Valley Rail¬
way Company, and previously of The Shenandoah Valley
Railroad Company ; and also the reversion and reversions,
remainder and remainders, and all the estate, right, title, in¬
terest, property, possession, claim and demand whatsoever, as
Avell at law as in equity, of the said Shenandoah Valley Rail¬
way Company, in and to the said railroad, property, fran¬
chises, rights, powers and privileges and to every part and
parcel thereof ; auö diso all auù singular^ all the line of rail¬
road formerlv of the Washington and Western Railroad Com-
✓ O
pany, beginning at a point on or near the Potomac River, op¬
posite to or in the vicinity of Washington, in the District of
Columbia, running thence to a point in Virginia, on the
Maryland and Washington Division of the Norfolk and
Western Railroad Company, formerly on the line of The
Shenandoah Valley Railroad, with the right to extend the
same to the West Virginia State line, and all property, real,
personal and mixed, and all chartered rights and franchises
heretofore belonging or appertaining to the said Washington
and Western Railroad Company ; and also the reversion and
reversions, remainder and remainders, and all the estate,
right, title, interest, property, possession, claim and demand
whatsoever, as well at law as in equity, formerly of the said
Washington and Western Railroad Company, in and to the said
railroad, property, franchises, rights, powers and privileges
and to every part and parcel thereof ; anö also all anb sin¬
gular all other property appurtenant to or used in connection
12
with the line of railroads hereby mortgaged and acquired by
the Norfolk and Western Railroad from the Shenandoah Val¬
ley Railway Company, and any extension from any point on
the line of the railroad hereby mortgaged, formerly of the
Shenandoah Valley Railroad Company, to a point at or near
the Potomac River, opposite Washington, D. C., and any ex¬
tension into Washington irom a point opposite Washington,
D. C., and all terminals in the District of Columbia, and any
other extensions of the said line of railroads hereby mort¬
gaged, and any short branches thereof and improvements
thereon that may hereafter be acquired by the party of the
first part by construction, purchase, or otherwise, with the
proceeds of any of said bonds secured by this mortgage by
construction, purchase, or otherwise ;
also, All railroads, railways, ways, rights of way,
road-bed and grade, all station, depot and shop grounds,
yards, and other grounds used and to be used in the opera¬
tion of the said lines of railroad, all rails, tracks, sidings,
switches, bridges, fences, turn-tables, water-tanks, viaducts,
culverts, main passenger and other depots, station-houses,
freight-houses, machine-shops, docks, and all other structures,
buildings and fixtures whatsoever, acquired or to be acquired,
for the use and operation thereof, all the rolling stock, ma¬
chinery, tools, implements, fuel and materials of the party of
the first part now owned or that may hereafter be acquired
for constructing, maintaining, operating, replacing, improv¬
ing or repairing the said lines of railroad and their appurte¬
nances or any part thereof, and all the real and personal es¬
tate now owned and that may hereafter be acquired and used
for the operation thereof ;
®crgetl)^rtDÍtl) All the corporate rights, powers, privileges and
franchises of the said party of the first part now possessed,
or that may be hereafter acquired, relating to the said rail¬
roads, and the construction, maintenance, use and enjoyment
of the same ;
^nîr t09elt)er toitl) All the streets, ways, passages, waters,
water-courses, easements, rights, liberties, privileges, heredita-
^3
ments and appurtenances whatsoever, unto any of the hereby
granted and mentioned premises and estates belonging or
appertaining, or hereafter to belong or appertain, and the re¬
versions and remainders, rents, issues, and profits thereof; and
all the estate, right, title, interest, property, claim and demand
of every nature and kind whatsoever of the said party of the
first part, now owned and possessed, or that may hereafter be
acquired, as well at law as in equity, of, in and to the same
and every part and parcel thereof;
®0 atlù to l]Olù the said above-described premises,
property, rights, powers, privileges, franchises and appurte¬
nances unto the said party of the second part, and its lawful
successors or successor, and assigns forever, to and for the
only proper use and behoof of the party of the second part, its
successors or successor and assigns ;
JJut in trusty For the equal pro rata heneñt and
security of all and every the persons or corporations who
may be or become holders of the said bonds or such of them
as shall be issued by the party of the first part, without pref¬
erence, priority or distinction as to lien or otherwise of any
over the others by reason of priority in time of issuing or
negotiating the same, and so that each and all of the said
bonds^ issued and to be issued as aforesaid, shall have the
same right, lien and privilege under and by this deed of
trust or mortgage, and shall all be equally secured hereby
with like effect as if they had all been made, executed, deliv¬
ered and negotiated simultaneously on the date hereof, it be¬
ing intended that the lien and security of all of the said bonds
shall take effect from the date of the execution and delivery
of this deed of trust or mortgage, whether the same shall
actually be sold or disposed of at such date, or whether they
or any part of them shall be negotiated and sold at some fu¬
ture date, and that the lien and security of this deed of trust
or mortgage, and all the bonds that may be issued under the
same, shall take effect from the date of the execution and de¬
livery hereof, as though the said bonds were actually sold
H
and delivered to and in the hands of innocent holders for value
upon such date, and the lien and security of the said bonds
shall in no manner be altered, impaired, or prejudiced by the
creation of subsequent deeds of trust or mortgages by the
Norfolk and Western Railroad Company, or by the entry or
acquisition of judgments or liens in any form by creditors at
any future time.
it is l)erebg cooenanteb anb unberstoob, By
and between the parties hereto, the said party of the first part
covenanting as well for itself as for their respective successors
and assigns, and the party of the second part covenanting as
well for itself as for its successors and assigns, and its succes¬
sors or successor in the trust, that the said above-described
premises, property, rights, powers, privileges, franchises and
appurtenances granted, bargained, sold and conveyed by the
said parties of the first part are to be held and disposed of by
the said party of the second part upon and for the trusts, uses,,
covenants, conditions, and purposes following, that is to say :
Article -first.—The party of the first part shall contempora¬
neously with the execution and delivery hereof make, execute
and deliver to the party of the second part, and the party of the
second part shall certify or countersign bonds of the party of
the first part intended to be secured hereby, to an amount not
exceeding in the aggregate ten million dollars, and shall,
from time to time, deliver the same so certified or counter¬
signed, as follows :—
I. Bonds to the amount of seven million five hundred thou¬
sand dollars shall forthwith be delivered to Louis Fitzgerald,.
George C. Wood, and Frank P. Clark, purchasing committee
under a plan and agreement for the reorganization of The
Shenandoah Valley Railroad, dated August 5th, 1890, the
party of the first party hereby authorizing and directing such
delivery for the purpose of carrying out the terms and condi¬
tions of said plan and agreement of reorganization.
a. Bonds to the amount of two million five hundred thou¬
sand dollars, or th^ proceeds thereof, shall be reserved in the
15
bands of the party of the second part : Two million dollars
thereof to provide, by construction, purchase or otherwise,,
for an extension from any point on the line of the railroad
hereby mortgaged to a point at or near the Potomac River,,
opposite Washington, D. C. ; and five hundred thousand dol¬
lars thereof to provide, by construction, purchase or other¬
wise, for a line of railroad into Washington from a point
at or near the Potomac River, opposite Washington, D. C.,.
and for terminals in the District of Columbia. The party of
the second part shall for the purposes of sale, countersign,
and deliver at any time or times, and from time to time, any
of the bonds reserved in the hands of the party of the second
part for the said purposes, upon the order of the party of the
first part, directing to whom such delivery shall be made»
under a resolution of its board of directors, accompanied by
a sworn statement of the president and treasurer of the party
of the first part showing the net proceeds of sale, provided
said net proceeds shall, contemporaneously with such deliv¬
ery, be paid the party of the second part, to be held and ap¬
plied in the same manner and for all intents and purposes as
the bonds themselves.
3. Bonds or their proceeds so set apart and reserved
shall be delivered or paid by the party of the second part
only upon certificates or requisitions of the president and
general manager and chief engineer of the party of the first
part, stating the purposes for which they are to be used,
accompanied by the certificate of the said treasurer that the
expenditures therefor have been made, and by a copy of the
resolutions of the board of directors of the party of the first
part authorizing the expenditures, and such instruments shall
be full vouchers and authority to the party of the second
part for the delivery of the said bonds or their proceeds
when and as called for, to the following amounts :—
The party of the second part shall, until any of such
bonds are sold, certify and deliver bonds at the rate of
one thousand dollars of bonds at their face or par value
for each nine hundred dollars of expenditures so certified^
but after any such delivery of bonds the party of the second
i6
part shall not deliver, or pay over, any further bonds or
their proceeds, until the party of the first part shall have
furnished to the party of the second part a sworn statement
of the president and treasurer of the party of the first part
showing the par value and the net proceeds of sale of any of
the bonds sold, and in case such proceeds of sale shall be in
-excess of ninety per cent, of the face or par value of said
bonds and accrued interest, an amount equal to such excess
shall be deducted from the succeeding certificate or requisi¬
tion, and further bonds, or their proceeds, shall be delivered
or paid by the party of the second part only on account of
the net amount of expenditures certified, after such deduction.
When the proceeds of bonds are called for, the party of the
second part shall pay to the party of the first part, out of any
proceeds of bonds in the hands of the party of the second part
on account of the expenditures certified, an amount of proceeds
equal to the amount of such expenditures certified, in case
the bonds, the proceeds of which are paid over, shall have
realized not less than ninety per cent, of the face value there¬
of and accrued interest; but in case the bonds, the proceeds
of which are so paid over, shall not have realized at least
ninety per cent, of the face value thereof and accrued interest,
the party of the second part shall pay to the party of the first
part the proceeds of one bond of one thousand dollars face
value for each nine hundred dollars of such expenditures so
certified.
The said sworn statements of the president and treasurer
shall be full warrant to the party of the second part for its
action thereunder, and in accordance herewith.
4. All overdue coupons on any of said two million five
hundred thousand dollars of bonds reserved in the hands of
V
said party of the second part shall be cut off and canceled by
the party of the second part before the delivery of any of said
bonds to the party of the first part ; or before the sale thereof
as heretofore provided.
5. All extensions, terminals, branches, improvements, addi¬
tions and con.struction, contracts, rights and privileges ac¬
quired or made by means of bonds issued hereunder, or their
17
proceeds, shall immediately become subject to the lien of this
mortgage, and the party of the first part covenants and
agrees that it will, from time to time, at the request of the
party of the second part, execute and deliver to the party of
the second part such proper and appropriate conveyances
thereof as may be necessary for the assurance thereof unto the
party of the second part upon the trusts herein set forth.
6. Whenever it shall be found expedient by the party of
the first part, at any time or times, to acquire, by construction,
purchase or otherwise, the extensions, terminals, branches,
improvements and additions for which bonds, or their pro¬
ceeds, are reserved under the second subdivision of the first ar¬
ticle hereof, the bonds so reserved, or their proceeds, shall
be used for such purpose only when the extensions, terminals,
branches, improvements and additions so acquired and made
shall become part of the premises of the party of the first
part hereby mortgaged, and shall, in the opinion in writing of
counsel learned in the law, to be mutually agreed upon by the
presidents of the parties hereto, be free from incumbrances prior
to the lien and operation of this mortgage, and such opinion of
counsel shall be sufficient evidence and full warrant to the
party of the second part for the delivery of bonds or their pro¬
ceeds for such purpose.
7. Should the amount of bonds, or their proceeds, applicable
under the second subdivision of the first article hereof, be
in excess of the expenditures required for either of the pur¬
poses for which they are reserved, then such excess may, after
such purpose shall have been accomplished, be applied, as
directed in writing by the president of the party of the first
part accompanied by the resolution of the board of directors
of the pafty of the first part, to such other purpose specified
in the second subdivision of the first article hereof, for
which other bonds or their proceeds are designated, and
the said direction and resolution shall be full and complete
warrant for the action of the party of the second part in ac¬
cordance therewith ; and bonds or their proceeds applicable
for either of such purposes shall not otherwise be applied or
used for the other purpose.
i8
Article Seconb.—Until the said bonds intended to be here¬
by secured can be engrav^ed, the party of the first part rriay
execute and issue written or printed temporary bonds or ob¬
ligations, in such form or forms, and in such amounts as may
be approved and be countersigned or certified by the party of
the second part, and which shall be entitled to all the security
hereunder, and be exchangeable for or convertible into the
bonds to be issued hereunder, and which shall be bv the
party of the second part canceled upon such exchange or
conversion being effected ; and the trustee may certify such
bonds or obligations in the same manner as the bonds here¬
inbefore provided for, and such bonds or obligations shall
not become valid until so certified.
Article ®l]irb .—The aggregate amount of all the bonds se¬
cured by this deed of trust or mortgage shall at no time
exceed ten million dollars, but may at all times be equal to
the sum of ten million dollars ; and after the payment and
cancellation of the said bonds to be immediately issued or to
be hereafter issued under this deed of trust or mortgage or
any portion thereof, an equal amount of bonds may, at the
option of the party of the first part, be made and issued by
the party of the first part in lieu of or substitution for any
which may have been paid and cancelled, and any and all
bonds so issued in lieu or substitution shall be entitled to all
the security of this deed of trust or mortgage which is given
to the bonds first issued thereunder—it being intended that
the whole amount of bonds to be secured by this deed of trust
or mortgage shall not exceed at any time ten million dollars,
but that they may, at the option of the party of the first part,
at all times be kept up to that amount, and that this deed of
trust or mortgage shall be a continuing security for such
bonds as may hereafter be issued thereunder, as well as for
the series or issue which is created and issued contemporane¬
ously with the execution and delivery hereof ; and that all the
bonds intended to be secured by this deed of trust or mort¬
gage, as well those now authorized to be issued as those
which may be made and issued from time to time after the
ig
payment of the whole or any portion of those now authorized
to be issued, shall from time to time be made, executed, and
issued when and as authorized by resolution of the board of
directors of the party of the first part.
Article JFourtl).—The said party of the first part hereby
covenants to and with the said party of the second part, for
the benefit of the bondholders under this deed of trust or
mortgage, that no lien or charge shall hereafter be created or
imposed upon said property or any part thereof superior to
the lien of these presents.
Sa.rtide JFiftI). —Until default shall be made in the pay¬
ment of the principal or interest of the said bonds secured
hereby, or of any of them, or until default shall be made in
respect to any other matter herein required to be done or
observed by the party of the first part, in pursuance of the
covenants on its part herein and in said bonds contained,
the party of the first part shall be permitted and allowed to
hold, possess and enjoy its premises hereby conveyed, and to
take and use the rents, profits, issues, income and revenue
thereof, and to dispose of the same in any manner not incon¬
sistent with the provisions of this indenture.
Article —In case of any default in the payment of
interest on any of the said bonds, when such interest shall
become due and payable, and such default shall continue for
the period of six months, or in case of any default in the ob¬
servance or performance of any other matter or thing to be
done or performed by the party of the first part, according to
the covenants, conditions and requirements of the said bonds
and of these presents, and such default shall continue for the
period of six months after notice in writing to the party of the
first part to observe or perform the duty or obligation required,
or in case of any default in payment of the principal of the
said bonds, or any of them, as and when the same shall ma¬
ture or otherwise become payable, then and in any and every
such case the said party of the second part, or its successors
20
ii^.the said trust, is andaré hereby authorized, either personally
or by its or their attorneys or agents, to enter into and,
upon all and singular the premises hereby conveyed, or in¬
tended so to be, by the party of the first part, and each
and every part thereof, or any part thereof, and to have,,
hold and occupy the same; and in its or their discretion, the
said party of the second part, or its successors, shall be
authorized to apply to any court of competent jurisdiction
for the appointment of a receiver of all the said mort¬
gaged property, and of all the rents, incomes, profits, is¬
sues and revenues thereof, from whatever source derived,
and thereupon it is hereby expressly covenanted and agreed
that such court shall forthwith appoint a receiver of such
mortgaged property, and of such income, profits, issues and
revenues, with the usual powers and duties of a receiver in
like cases, and that if such receiver be nominated and desig¬
nated by the holders of a majority of the bonds which these
presents are executed to secure, then that such appointment
shall be made by the said court as a matter of strict right ta
the party of the second part and to the bondholders repre¬
sented by it, and without reference to the adequacy or in¬
adequacy of the value of the premises and property hereby
mortgaged to secure fully the payment of the said bonds, or ta
the solvency or insolvency of the party of the first part; and
such rents, income, profits, issues and revenues shall be ap¬
plied by such receiver, according to law and the order and
practice of such court.
Article QcvcnÜ),—In case any default shall be made and
shall continue as aforesaid, it shall likewise be lawful for
thp said party of the second part, or its successors, with or
without actual entry, and acting either directly or by attor¬
neys or agents, to sell and dispose of all and singular the
preniises and property hereby conveyed, or intended so to
be, by the party of the first part, as an entirety, at public
auction, in such place witjiin the State of Virginia, as the
said, party qf the second^ part may designate, and at suçh
ticíiie a§. it or they n^ay appoint, having first given notice ofi
2 I
the time and place of such sale by advertisement published
'not less than three times a week for six weeks in a newspaper
or newspapers in the cities of New York, Philadelphia and
Roanoke, and to adjourn such sale from time to time at dis¬
cretion, and, if so adjourning said sale, to make the same at
the time and place of such adjournment, or to make sale
thereof in any other manner authorized by law, and to make
and deliver to the purchasers thereof good and sufficient
deeds in the law for the conveyance of all the right and title
of the party of the first part to the premises so sold ; which
sale, made as aforesaid, shall be a perpetual bar, both in law
and in equity, against the party of the first part, and all per¬
sons lawfully claiming or to claim the said premises, or any
part thereof, by, from, through, or under it ; and after de¬
ducting from the proceeds of such sale just allowances for all
expenses of sale, including attorneys' and counsel's fees, and
all other expenses, advances or liabilities which may have
been made or incurred by the said trustee in the trust, and
all payments which may have been made by it or them for
taxes or assessments, and for charges and liens on the said
premises or any part thereof, prior to the lien of these pres¬
ents, as well as reasonable compensation for its or their
own services, to apply the said proceeds to the payment of
the principal of such of the aforesaid bonds as may be at the
time unpaid (whether or not the same shall have previously
become due), and of the interest which shall at that time have
accrued on the said principal and be unpaid, without discrim¬
ination or preference, but ratably to the aggregate amount of
such unpaid principal and accrued and unpaid interest ; and
if there shall remain any surplus after payment of all the said
bonds hereby secured or so intended to be in full, both prin¬
cipal and interest, then to pay over and account for such sur¬
plus to the party of the first part.
And it is hereby declared that the receipts of the said party of
the second part shall be a sufficient discharge to the purchaser
or purchasers of the premises for the purchase-money; and that
such purchaser or purchasers, his or their heirs, executors or
administrators, shall not, after payment thereof, and having
22
such receipt, be liable to see to its being applied upon or for
the trust and purposes of these presents, or be answerable in
any manner for any loss, misapplication, or non-application of
such purchase-money or any part thereof, or be obliged to
inquire into the necessity, expediency or authority of or for
any such sale.
Article ffiigbtl) .—In case any default shall be made in the
payment of any semi-annual interest on any of the aforesaid
bonds, at the time and in the manner expressed in the said
bonds, and the said default shall continue for the period of six
months after said interest becomes due, or in case any default
shall be made in the observance or performance of any other
matter or thing to be done or performed by the party of the
first part according to the covenants, conditions, and require¬
ments of the said bonds, and of these presents, and such latter
default shall continue for the period of six months after notice
in writing to the party of the first part to observe or perform
the duty or obligation required, then and in such case the
principal of all the bonds secured hereby shall, at the election
of the party of the second part, such election to be evidenced
by a written notice thereof served upon the party of the first
part, become immediately due and payable, anything con¬
tained herein or in said bonds to the contrary notwithstand¬
ing; and, if requested so to do by the holders of one-third
in interest of the bonds hereby secured and then outstanding,,
b)* an instrument or concurrent instruments in writing signed
by them, or by their attorneys in fact duly authorized for that
purpose, it shall be the duty of, and it is hereby made obliga¬
tory upon, the said party of the second part to elect to declare
the principal sum due as aforesaid; a majority in interest of
the holders of such bonds may, however, instruct the party of
the second part to refrain from making such declaration, upon
such terms and conditions as such holders shall designate, and
in such case it shall be the duty of the party of the second
part to comply with such instructions, notwithstanding any
request on the part of other bondholders, and such holders
of a majority in interest of said bonds outstanding may, in
23
like manner, annul or reverse the declaration, if already made
by the party of the second part, anything herein contained to
the contrary notwithstanding ; but the action of the party of
the second part or of the bondholders, in case of any one de¬
fault, shall not affect or impair the rights of the party of the
second part or of such holders in respect to any subsequent
default on the part of the party of the first part, or impair any
rights resulting therefrom.
Article Nitltl).—It is hereby declared and agreed that it shall
be the duty of the party of the second part, its successor or suc¬
cessors under this indenture, to proceed forthwith to exercise
the powers of entry or the powers of sale hereby granted, or
both, or to take appropriate legal proceedings to enforce the
rights of the bondholders under these presents, and after a
continuance thereof as hereinbefore mentioned, upon any de¬
fault under these presents, and upon receiving the requisition
in writing hereinafter specified, in the manner and subject to
the qualifications herein provided, that is to say :—
I. If the default consists in the non-payment of either the
interest or principal of any of the said bonds, such requisition
upon the party of the second part shall be by the holders of
not less than one-third in amount of the said bonds then
outstanding, and upon such requisition, and a proper indem
nification to the satisfaction of the party of the second part
by or on behalf of the persons making the same to the
party of the second part against the costs and expenses
and all other liabilities to be incurred in that behalf, it
shall be the duty of the party of the second part to
enforce the rights of the bondholders under these pres¬
ents, either by the exercise of the powers granted herein,
or by a suit or suits in equity or at law in aid of the ex¬
ecution of such powers or otherwise, as such party of the
second part shall deem most effectual for the enforcement of
the said rights ; it being understood and hereby expressly de¬
clared that the rights of entry and sale hereinbefore granted
are intended as cumulative remedies, additional to all other
remedies allowed by law, and that the same shall not be
24
deemed in any manner whatsoever to deprive the said party
of the second part, or the beneficiaries under this trust, of any
legal or equitable remedy by judicial proceeding consistent
with the provisions of these presents. No action, suit or pro¬
ceeding at law or in equity shall be had, prosecuted or main¬
tained for the foreclosure of this mortgage, or the enforce¬
ment of the lien hereby created, by any person or party other
than the party of the second part, except upon the failure,
neglect, or refusal of the party of the second part to act
within a reasonable time after it shall have been requested
so to do as hereinabove provided.
2. If the default be the omission to comply with any of
the provisions of these presents, other than the payment of
the interest or principal of the said bonds, then, and in any
such case, the requisition shall be with similar indemnification
and shall be by the holders of one-half in interest of the said
bonds then outstanding, and such holders shall have power
(with similar indemnification) in like manner to instruct the
said party of the second part by requisition in writing (which
shall be imperative upon such party of the second part) either
to waive such default or to enforce the rights of such bond¬
holders by reason thereof : Iflromöeö, That no action of the
said party of the second part, or of the said bondholders,
or both, in waiving such default or otherwise, shall extend to
or be taken to affect any subsequent default, or to impair the
riofhts resultins^ therefrom.
o o
ía.rticlc Senti) .—If at any time any portion not part of the
railroad tracks of the premises hereby mortgaged and con¬
veyed cannot be advantageously used in connection with
the use or operation of said railways by reason of any
change of location, change of track or by reason of any
other cause, the same may be exchanged for other lands,
tenements or hereditaments of equal value, or be sold,
conveyed or otherwise disposed of, and the party of the
second part shall, if so requested, convey the same by re¬
lease or otherwise ; provided that any lands, tenements or
hereditaments acquired by exchange shall be conveyed to
25
the party of the second part for the further security of the
said bonds of the party of the first part, free from any incum¬
brance or lien prior to these presents, and that the proceeds
of any lands, tenements or hereditaments so sold, conveyed or
•otherwise disposed of, or a sum equal thereto, shall be paid or
transferred to and held by the party of the second part for the
further security of the said bonds, free from any incumbrance
or lien prior to these presents until the same or a sum equal
thereto shall ha:ve been used and applied by the party of the
first part in the purchase of other lands, tenements or heredit¬
aments, and until the same shall have been conveyed to the
party of the second part free from any incumbrance or lien
prior to these presents to be held by it hereunder as part of
the mortgaged premises, for the further security of said bond
of the party of the first part.
The party of the first part and its successors and its and their
assigns may from time to time dispose of such portion of the
equipment, rolling stock, machinery and implements at any
time held or acquired for the use of the said railroad hereby
mortgaged as may have become unfit for such use, replacing
the same by new of the value of that sold, which shall there¬
upon become under and subject to this mortgage, and shall
also be expressly assigned to the party of the second part, its
successors, or its or their assigns, subject to this mortgage, on
its or their demand. The party of the second part may, in like
manner, consent to any changes in the location of the track
or alterations or changes of station-houses, depots, shops or
other fixtures which in the judgment of the party of the first
part shall have become expedient, and execute the instruments
necessary to enable the party of the first part to carry the
same into effect ; but any tracks^ premises or property ac¬
quired in substitution for any released, altered or changed
shall be conveyed on demand to the party of the second
part and shall immediately become subject to this mortgage.
The sworn statement of the president or vice-president and
the chief engineer for the time being of the party of the first
part may be received by the party of the second part as suffi¬
cient evidence of any of the facts mentioned in this article,
2b
including the necessity for, or value of, any property and
shall be full protection to the party of the second part for
any action taken by it on the faith thereof, but the party of
the second part may, in its discretion, require such further
and additional evidence as to it may seem reasonable.
iÄ^rticle ®leaentl).—In case of any judicial foreclosure sale or
other sale of the premises embraced in this mortgage, or any
part thereof, under the decree of any court having jurisdic¬
tion thereof, based upon the foreclosure of this mortgage, if
the holders of three-fourths of the outstanding bonds secured
by this mortgage shall, in writing, request the said party of
the second part, its successor or successors, to purchase the
premises embraced herein, for the use and benefit of the
holders of all the outstanding bonds secured by this mort¬
gage, the said party of the second part, its successor or suc¬
cessors, is and are fully authorized, in its or their discretion,,
to make such purchase, and having so purchased said prem¬
ises, the right and title thereto shall vest in the said party
of the second part, its successor or successors, in trust to
dispose of the same in such manner as the holders of three-
fourths of said outstanding bonds secured by this deed of
trust or mortgage shall, in writing, request or direct.
Article Stoelftl).—Any request in writing or other instru¬
ment required by this indenture to be signed or executed by
the holders of bonds secured hereby may be in any number
of concurrent instruments of similar tenor and may be signed
or executed by such holders in person or by attorney in fact-
Proof of the due execution of any such request or other
instrument by the holders of the requisite amount of bonds
shall be sufficient for the purposes of this identure if it shall
be made to appear in the manner hereinafter provided, that
the persons so executing such request or other instrument
were contemporaneously the holders of the requisite amount
of bonds on or after the date of the execution of such request
or other instrument by such holders.
The fact and date of the execution by any person of any
27
such request or other instrument may be proved by the cei
tificate of a notary public or other officer authorized to take
acknowledgments of deeds, to be recorded in New York, that
the person signing such request or other instrument acknowl¬
edged to him, on the date thereof, the execution thereof, or
by an affidavit of the witness of such execution.
The holding and date of holding of bonds by any person
executing any such request or other instrument as the holder
of bonds issued hereunder, and the amounts and issue num¬
bers of the bonds held by such person, may be proved by a
certificate in writing executed by any depositary approved by
the party of the second part (such statement being acknowl¬
edged by such depositary before an officer authorized to take
acknowledgments of deeds, to be recorded in New York),,
showing that such person held on deposit with such depositary
the bonds described in such certificate at the date therein
mentioned, such proof shall be conclusive in favor of the party
of the second part with regard to any action taken by it
under such request or other instrument.
Article —The party of the first part hereby cove¬
nants, promises and agrees to and with the party of the sec¬
ond part and its successors, that it will well and truly pay the
said bonds which these presents are executed to secure, and
the interest due and to grow due thereon, according to the
true tenor thereof and hereof; and also that it will not at any
time or in any manner take, apply for, or avail itself of any
stay of proceedings, or plead, use, interpose or take advan¬
tage of any extension law, stay law, valuation law, redemption
law or any other law of the States in which such property is
or may be located, now in force, or which may hereafter be
in force, in said States, and which may in any way alter, affect,,
impair or impede the rights or remedies of the holders of
said bonds, or of the said party of the second part, or of its
successors, as herein declared, or which shall affect or change
the time, place, means, or mode of perfecting, enjoying, or
enforcing any of such rights, interests, or remedies, as the
same are herein declared and set forth.
28
Article iTourteenti).—i. The party of the first part further
covenants and agrees with the party of the second part and
its successors that it will pay or cause to be paid all taxes,
charges, or assessments imposed or assessed, or which may
hereafter be imposed or assessed, upon its premises and prop¬
erty covered by this indenture; and will pay and discharge
all claims of every name and nature which may hereafter be¬
come a lien upon the property hereby conveyed, or any part
thereof, prior or superior to this indenture ; and that when
and as the interest coupons annexed to the bonds secured
hereby become payable and are paid by the party of the first
part, or by any person or corporation for or on its behalf, they
shall be canceled; and that no purchase or sale of any of the
said coupons or interest, separate from the bonds from which
such coupons have been detached or on which such interest
shall accrue, and no advance or loan upon the same, and
no redemption of any coupons or interest by or on behalf
of the party of the first part, shall, as between the pur¬
chasers or assignees of such coupons or interest and the
holders of the said bonds, operate as keeping the said cou¬
pons or interest alive or in force as a lien upon the mort¬
gaged premises ; but all coupons or interest purchased, re¬
deemed, or assigned separate from the bonds from which such
coupons are detached, or on which such interest shall accrue,
shall, at all times, be subordinated in lien to and be paid only
after payment in full of all the bonds issued hereunder, together
with the coupons thereon and the interest due the holders
thereof.
2. The party of the first party further covenants and agrees
that it will maintain the railroad, terminal facilities, premises
and property hereby mortgaged with all necessary equipment
and rolling stock, in good order and condition, and keep all
structures and insurable property hereby mortgaged well and
sufficiently insured, and that in case of loss or injury by fire
the proceeds of insurance shall be set apart from all other
funds and used only in repair or in renewal of the property
injured or destroyed, or for construction, improvements or
equipment of any part of the railroad or property included
or to be included in this deed of trust or mortgage.
39
Article —It is hereby understood and provided
that the party of the second part, trustee hereunder, or any
future trustee under this indenture may resign and discharge
itself or himself of the trusts created by these presents, by
notice in writing to the party of the first part, and to any
other existing trustee or trustees, sixty days before such
resignation shall take effect, or by such shorter notice as
said party of the first part and such other trustee or trus¬
tees may accept as adequate, and upon due and proper
accounting in respect to its or his trusteeship, and execu¬
tion of the conveyances hereinafter required. Any vacancy
in the office of any such trustee, occurring in any manner
or at any time, may be filled by appointment of the party
of the first part, provided that such appointment shall be
ratified and approved by any judge for the time being
of the Circuit Court of the United States for the Southern;
District of New York, and notice to the bondholders shall
be published in two newspapers of general circulation in the
city of New York for thirty days, specifying the time and
place of the application for such approval and ratification,,
which appointment and order ratifying and confirming the
same shall be filed with the new trustee and the party of the
first part ; and thereupon the trustee or trustees so appointed
shall become vested, in commoit with any surviving or con¬
tinuing trustee, with all the powers and authorities granted to
or conferred upon the party of the second part by these
presents, and all the rights and interests requisite to enable it
or him to execute the purposes of this trust, without any fur¬
ther assurance or conveyance; but the surviving or continuing
trustee, if any, shall immediately execute all such convey¬
ances and instruments as may be fit or expedient for the pur¬
pose of conveying and assuring the legal estate in the prem¬
ises to the trustee so appointed jointly with itself; and in
like manner any trustee so resigning or removed shall imme¬
diately execute a deed or deeds of conveyance to vest all his-
or its right and interest in the said trust property in such
new: trustee jointly with] any remaining trustee and upon
tl^; trqsts herein, expressed, In ease it shall at any^ time^;
30
hereafter prove impracticable to fill any vacancy which may
have occurred in said trust in manner as aforesaid, application
on behalf of all the holders of the bonds secured hereby may
be made by the surviving or continuing trustee, or if the
trust be wholly vacant, by holders of the said bonds to the
aggregate amount of one hundred thousand dollars, to any
court of competent jurisdiction, for the appointment of a
new trustee or trustees; and upon such application a majority
in interest of the said bondholders shall be entitled to nomi¬
nate the corporation or corporations, person or persons to be
so appointed by such court, and their said nominee or nomi¬
nees shall be appointed without giving other security than its,
his, or their acceptance of such trust. And it is further
provided that in case of the appointment of two or more
trustees under this indenture, the said new trustees shall not
be in any manner responsible for any default or misconduct
of each other, and that the present party of the second part
and any new trustees shall be entitled to just compensation
for all services which it, he, or they may hereafter render in
the said trust as hereinafter provided.
—No bond shall bevalid as secured under
this mortgage or deed of trust, except such as shall be au-
thenticated by the certificate of the trustee or trustees in¬
dorsed thereon, signed by said trustee or trustees.
i^rlicle —In case any bonds issued hereunder
become mutilated or destroyed, it shall be lawful for the party
of the first part to issue new bonds of like tenor and date and
bearing the same serial numbers, and the officers of the party
of the first part for the time being may sign, and the trustee
may certify the same, for delivery in exchange for or in lieu
of bonds so mutilated or destroyed ; but the party of the first
part may require such proof of loss and such indemnity as it
shall deem proper.
Article (Kigljteentl).— The party of the first part, its succes¬
sors ot assigns, shall always keep, at its expense, in the city
3^
of Philadelphia and city of New York, a register of the bonds
to be issued under these presents, in which any holder of any
of said bonds shall be entitled, on presentation thereof, to reg¬
istration of the name and address of such holder and of the
numbers of any bonds held by such holder.
Niueteentl).—The said party of the second part,
trustee hereunder, and its successor or successors in this
trust shall not be responsible for the acts of any agent or at¬
torney employed by it or them in pursuance hereof, nor for
anything whatever in connection with this trust, except its or
their own willful misconduct or gross negligence, anything
in this indenture or in the bonds issued hereunder to the con¬
trary thereof notwithstanding ; nor shall the said trustee, its
successor or successors, be obliged to take any action here¬
under which in its opinion will be liable to render it subject
to expense or liability, until reasonable indemnity to its satis¬
faction shall have been given to it. The said trustee, or its
successor or successors, shall be entitled to and shall have
proper compensation for all services it may render in connec¬
tion with the trust, and the trustee shall also be entitled to
receive reimbursement for necessary or reasonable expenses
in the employment of counsel or otherwise, in protecting or
in executing the trust hereby created. The party of the first
part agrees to pay such compensation and expenses, and the
party of the second part shall have a lien therefor upon the
trust estate.
^rticU —The said party of the first part, for itself
and its successors, hereby covenants to make, execute, and de¬
liver all such other and further instruments, deeds, or inden¬
tures as may be necessary to enable the corporation or corpo¬
rations, person or persons, so appointed to execute the trust
hereby created, as fully and perfectly in all respects as it, he
or they could have executed the same if originally a party to
this indenture, and also to execute and deliver any further
and reasonable and necessary deed or deeds, conveyance or
conveyances, to said trustee, its successor or successors, for
the more fully defining, designating, and describing the rail¬
roads and premises herein conveyed, and for the more fully
securing the payment of said bonds, particularly for the con¬
veyance of any railroads, lands, property or premises, or any
right or interest therein, acquired by said party of the first
part, or its successor or successors, subsequent to the date
hereof, pertaining to the premises conveyed by this inden¬
ture, whether now owned by the party of the first part or
hereafter acquired.
SÄ.rticle Stoentg-'ftrst.—It' is a condition of this deed that
upon the cancellation of all of the bonds which shall have
been issued hereunder, and upon exhibiting the said bonds
canceled to the party of the second part, or upon deposit
with the party of the second part, when the principal of
said bonds shall have become due and payable, of the entire
amount of the principal moneys and accrued and unpaid
interest of all of said bonds issued hereunder which shall
not have been canceled and exhibited to the party of the
second part so canceled, the estate, title and interest of the
party of the second part, its successor or successors, shall
cease, determine and become void, and the party of the second
part shall, upon the written request of the party of the first
part, accompanied by a resolution of its board of directors,
requesting the same forthwith at the cost and expense of the
party of the first part, its successors or assigns, enter satisfac¬
tion of this mortgage upon the records, and shall do, make,
execute and deliver such deeds, acts, instruments or assur¬
ances as may be necessary to vest all the mortgaged premises
and property in the party of the first part, its successors or
assigns, free and discharged from the lien of these presents.
The party of the first part may, however, at any time until
this mortgage or deed of trust shall have been so satisfied and
the lien thereof discharged upon the records, issue and require
the party of the second part to certify and deliver new bonds,
as hereinbefore provided, in lieu of and substitution for any
and all the bonds so paid or canceled : JJroüiöeö atoagô, That
,33
the total aggregate amount of the bonds at any time out¬
standing and secured hereby shall not exceed ten million dollars.
^rtick —The party of the second part here¬
by accepts the trust herein created and covenants faithfully to
execute the same. •
Article Swntg-tllirîr.—tt)l)erea6, in order to expedite the
recording of this deed of trust or mortgage four counterparts
thereof are simultaneously executed, acknowledged, and deliv¬
ered by the party of the first part to the party of the second párt ;
Not», tljmfore, tliis Snîrenture furtljer ttJitneesetl), That—
although four counterparts are simultaneously executed, ac¬
knowledged, and delivered by the party of the first part to the
party of the second part, and the said party of the second part
in evidence of its acceptance of the trusts hereby cteàted has
likewise simultaneously executed and acknowledged the same
to the end that all or any one or more thereof may be record¬
ed—that any one or more of said counterparts so executed,
acknowledged,' and delivered shall severally or collectively be
deemed to be an original and for all intents and purposes but
one instrument.
Article —It is understood and agreed that
the word ''trustee," and the words " party of the second part,"
when and as used in this deed of trust or mortgage, are in¬
tended to refer to and describe, and shall be construed to
mean body or bodies corporate, or person or persons, which
or who, for the time being, shall be charged with the execu¬
tion of these presents, whether the same be the said party of
the second part, or any successor or successors of the said
party of the second part in the trusts hereby created.
Frederick J. Kimball, president of the Norfolk and West¬
ern Railroad Company, is hereby authorized and appointed
by said corporation as its attorney to acknowledge this deed
as the act and deed of said corporation with the view of
having the same recorded.
Jn tOitneas The said parties hereto have caused
,these present to be signed in their respective corporate names
34
by their respective duly authorized officers, and sealed with
their respective corporate seals, attested by the signatures
of their respective secretaries, the day and year first above
written.
Norfolk and Western Railroad
Company,
By
F. J. KIMBALL,
Attest : President.
A. J. Hemphill,
Secretary.
The Mercantile Trust Company,
By
LOUIS FITZGERALD,
President.
Norfolk and
, Western R. R. Co.,
/
Seal
I Mercantile
\ Trust Company.
Attest :
\
H. C. Deming,
ss.
Secretary,
Signed, sealed, and delivered
in the presence of
Note:—Interlineation of forty-two words com¬
mencing on thirty-second line of page 33.
T. F. Barksdale,
David W. Flickwir.
of birginia,
ditg of ÎSoonoke,
I, T. F. Barksdale, a notary public for the city and State
aforesaid, do certify that Frederick J. Kimball, with whom I am
personally acquainted and to me known to be the president of
the Norfolk and Western Railroad Company, whose name is
signed to the foregoing deed of trust or mortgage of the
Norfolk and Western Railroad Company, dated the fifteenth
day of December, A. D. 1890, has this day personally ap¬
peared before me in my city aforesaid, produced before me the
said deed of trust or mortgage, and then and there acknowl¬
edged the same before me, in my city aforesaid, and has fur¬
ther acknowledged and declared that he executed the same as
35
president of the Norfolk and Western Railroad Company,
and as its attorney, and for and on behalf of said company as
its and his voluntary act and deed, for the purposes therein
named, having as such president signed his name thereto,
and affixed the corporate seal of said company, and consented
that the same might be recorded ; and that he has caused
the same to be duly attested by A. J. Hemphill, the sec¬
retary of said company ; all of which has been done by him
under and pursuant to the authority conferred on him by
the stockholders and board of directors of said Norfolk
and Western Railroad Company.
I do further certify that A. J. Hemphill, with whom I
am personally acquainted, and to me known to be the secre¬
tary of the Norfolk and Western Railroad Company, whose
name is also signed to the foregoing deed of trust or mort¬
gage dated the fifteenth day of December, A. D. 1890,
as hereinbefore referred to, has also this day personally
appeared before me, in my city, produced to me the said
deed of trust or mortgage, and then and there acknowl¬
edged the same, and declared that, by the direction of Freder¬
ick J. Kimball as president of the Norfolk and Western Rail¬
road Company, and under and pursuant to the authority con¬
ferred by the stockholders and board of directors of said com¬
pany, he has duly attested the said deed of trust or mortgage,
and has signed his name to said attestation.
And on the same day personally came the said Frederick
J. Kimball and the said A. J. Hemphill, each of whom, being
duly and separately sworn, did depose and say that the said
Frederick J. Kimball is the president of the said Norfolk and
Western Railroad Company, and the said A. J. Hemphill is
the secretary of the said Norfolk and Western Railroad Com¬
pany, and producing before me the foregoing deed of trust or
mortgage they then and there signed the same and acknowl¬
edged the same to be their voluntary act and deed and that
of the said company ; and did further say that they know the
corporate name and seal of the said Norfolk and Western
Railroad Company, that the name and seal signed and affixed
to the foregoing deed of trust or mortgage are such name and
36
seal, that the said name was signed and said corporate seal
was affixed to the foregoing deed of trust or mortgage by
order and authority of the stockholders and board of direct¬
ors of the said company, and that they and each of them
signed his name thereto by the like order and authority as
president and secretary thereof.
State of tiirgiitio, \
Citg of Koonoke, i
I, T. F. Barksdale, a notary public for the city and State
aforesaid, do certify that Louis Fitzgerald, president of The
Mercantile Trust Company of New York, whose name is
signed to the foregoing deed of trust or mortgage of the
Norfolk and Western Railroad Company, dated the fifteenth
day of December, A. D. 1890, has this day personally appear¬
ed before me, in my city aforesaid, and acknowledged the same
before me, in my city aforesaid, and has further acknowledged
and declared that he executed the same as president of The
Mercantile Trust Company of New York, and for and on be¬
half of said company as its and his voluntary act and deed,
having as such president signed his name thereto, and affixed
the corporate seal of said company ; and that he has caused
the same to be duly attested by H. C. Deming, the secretary
of said company ; all of which has been done by him under
and pursuant to the authority conferred on him by the board
of directors of said The Mercantile Trust Company of New
Given under my hand and notarial seal
this fifteenth day of December, A. D. 1890.
/ Notarial Seal of \
/ T. F. Barksdale, \
Notary Public, j
Roanoke City, j
T. F. BARKSDALE,
Notary Public.
/
York.
Given under my hand and notarial seal,
this fifteenth day ot December, A. D. 1890.
T. F. BARKSDALE,
NotaryPublic.
37
Stau of birginio, 1
Cits of Koanoke, /
Before me, a notary public for the city and State aforesaid,
personally appeared, this fifteenth day of December, 1890,
Louis Fitzgerald, president of The Mercantile Trust Com¬
pany of New York, whose name is signed to the foregoing
deed of trust or mortgage, and being by me duly sworn ac¬
cording to law, did make oath in due form of law, that the
consideration of the foregoing deed of trust or mortgage is
true and bona fide as therein set forth, and at the same time
he also did make oath in due form of law, that he is the
president of The Mercantile Trust Company of New York,
and that as such he is the agent of that corporation for the
purpose of making this affidavit.
LOUIS FITZGERALD.
Sworn and subscribed before me, this
fifteenth day of December, 1890. Witness
my hand and notarial seal.
T. F. Barksdale,
Notary Public,
birginia.
In the Clerk's office of the Corporation Court of Roanoke
City, on the fifteenth day of December, 1890.
The foregoing deed of trust or mortgage from the Norfolk
and Western Railroad Company to the Mercantile Trust
Company, a corporation organized under the laws of the
State of New York, trustee, dated December 15th, 1890,
with certificates of acknowledgments thereto annexed, was
this day presented in said office, and the necessary tax on
recordation, ten thousand dollars having been paid to me, the
same is admitted to record at 11.19 A. M.
Teste: S. S. BROOKE,
Clerk of the Hustings Court of the city of Roanoke^ Virginia,
Deed-book pages
Clerks fee for recordation, fifteen dollars, paid S. S. Brooke,
clerk. Duplicate.
Seal of
T. F. Barksdale,
Notary Public, ^
Roanoke City. /
5556 042 154690