The St. Louis, Iron Mountain and Southern
Railway Company.
• -- -+•-*
FIRST MORTGAGE—MEMPHIS BRANCH.
Issue Limited to §22,500 per Mile of Completed Road.
MERCAME TRUST COMPANY,
OF NEW YORK,
Tfus/ee.
Bonds dated January 1, 1886, and due March 1,
1915, drawing six per cent, interest.
C. <!. Buhgoyne's " Quick " Pilât, 146-150 Centre St., N. Y.
ST. LOUIS, IRON MOUNTAIN AND SOUTHERN
RAILWAY COMPANY.
First Mortgage, Memphis Branch.
Indenture, made this fifteenth day of
December, A. D. 1885, between the St. Louis, Iron Mountain
and Southern Railway Company, a consolidated corporation ex¬
isting under and by virtue of the laws of Missouri and Arkansas, here¬
inafter referred to as the Railway Company, party oKthe first part,
and the Mercantile Trust Company of New York, hereinafter re¬
ferred to as the Trustee, party of the second part.
WLitm&szfh :
That, whereas, the party of the first paît, under its charter, is
authorized to build branches and extensions of its road to any point
or points within the State of Arkansas, to which it may determine to
build such branches or extensions :
And whereas, the party of the first part has determined to build
a branch of its road on the most eligible route to be determined by
survey, extending from or near the town of Bald Knob, in White
County, Arkansas, or such other point on the main line of its
railway in said County, as the directors or Executive Committee of
said company may select or approve, eastwardly through White,
Woodruff, Cross arid Crittenden or other Counties, in the State of
Arkansas, to Hopefield or West Memphis, on the west bank of the
Mississippi Liver, opposite Memphis, Tennessee, or to such other
'2
point m Crittenden County as the said Railway Company may
select or approve, which said branch is .hereinafter called the
Memphis Branch ;
And whereas, the said Railway Company has corporate powei
and authority to issue and deliver its corporate bonds, and for the
purpose of securing the payment of the same to execute mortgages
or deeds of trust of its said branch line of railway ;
And whereas, the said party of the first part will require the
money herein contemplated to be raised in order to build and
complete the said Memphis Branch, the construction and
completion of the road as aforesaid to include the making of
betterments and procuring of rights of way, depot grounds, the erec¬
tion of machine shops, depots, and the acquiring of all
the usual appurtenances of a railway, and the usual and
proper facilities for the transaction of the business of a railway ;
it being understood that any part of the bonds certified hereunder
to the company, not needed for construction may be used
for any legitimate, necessary or beneficial purpose of the Railway
Company in respect of said Memphis Branch ;
And whereas, at a meeting of the Board of Directors of the
party of the first part, duly held, a resolution was passed authorizing
the execution of this Indenture and the issue of first mortgage bonds,
as herein provided, not to exceed the limit of twenty-two thousand
five hundred dollars per mile of completed road, said mortgage to be
made to the Mercantile Trust Company of New York as Trustee,
and said bonds and mortgage to be in the form appearing in this In¬
denture.
And whereas, in pursuance of such resolution and authority,
and as authorized to do by law, and its articles of incorporation, the
party of the first part has determined to issue its bonds as herein¬
after set forth and secure payment of the same, principal and in¬
terest, by this mortgage or trust deed, the said bonds to be payable,
principal and interest, in lawful money of the United States ; said
bonds to stand equally and ratably secured hereby without any pref¬
erence whatever arising from the time of issue or otherwise, and to
3
be issued as required for the purposes aforesaid, and in the manner
and on the conditions herein provided, and each of said bonds to be
duly executed by and under the seal of the party of the first part,
signed and attested by its President or Vice-President, and Secre¬
tary or Assistant Secretary, and the interest warrants to be authenti¬
cated by or with the name of the Treasurer, and upon each of said
bonds being so signed, sealed, executed and authenticated they are
to be countersigned or certified by the said parties of the second
part in their capacity as Trustees, which countersigning or certifying
shall be conclusive, and the only sufficient proof that the said bond
is secured by this Indenture, each of which bonds is substantially in
the following form :
UNITED STATES OF AMERICA.
State of Arkansas.
THE ST. LOUIS, IRON MOUNTAIN AND SOUTHERN
RAILWAY COMPANY.
No. $1,000.
FIRST . MOR TG A GE B OND. — MEMPHIS BRANCH.
Issue Limited to $22,500 per Mile of Completed Road.
For value received, the St. Louis, Iron Mountain and Southern
Railway Company, a consolidated corporation existing under the
laws of Missouri and Arkansas, promises to pay, in lawful money of
the United States of America, to the holder of this bond, or, in case
this bond be registered, then to the registered owner thereof, at its
financial agency in the City of New York, on the first day of
March, A. D. 1915, One Thousand Dollars, and also interest there¬
on, at the rate of six per centum per annum, payable semi-annually,
on the first days of March and September, in each year, on
the presentation and surrender of the respective interest coupons
hereto annexed, at the financial agency aforesaid. This Bond is one
of a series of first mortgage bonds, each of the denomination of one
thousand dollars, numbered from one upwards, the payment of the
principal and interest of which is secured by a mortgage of even date
herewith, conveying to the Mercantile Trust Company of New York,
in trust for the holders of said bonds, the Memphis Branch of said
4
Railway Company, as described in the said mortgage, together with
franchises, lands, property and income of said Memphis Branch,
as specified in said mortgage. The issue and certification
of bonds under said mortgage is limited to twenty-two
thousand five hundred dollars per mile of completed road. If
default shall be made in the payment of any semi-annual installment
of interest on this bond when the same shall become due, and be
demanded, and shall remain unpaid for six months after such demand,
the principal of this bond shall become due and payable in the manner
provided in the said mortgage. The said Company and the railway
and property described in the said mortgage, are liable to pay this
bond, but stockholders of the Company are not individually liable
thereon or in respect thereto. Said Company hereby waives the
benefit of any extension, stay or appraisement laws now existing or
that may hereafter exist. It is agreed that the obligor may, on
any interest day at any time after five years from the date hereof,
redeem this bond by the payment of the par amount thereof and five
per cent, premium in addition to any interest then accrued as pro¬
vided in said mortgage. This bond is to be valid only when
authenticated by a certificate endorsed hereon, signed by the Trustee
to the effect that it is one of the bonds issued under the said mort¬
gage.
In witness whereof, the said Company has caused its corporate
name to be hereto signed by its President or Vice-President, and its
corporate seal to be hereunto affixed, attested by its Secretary, this
the firsst day of January, A. D. 1886, and the annexed interest
coupons to be executed with the engraved signature of its Treasurer.
St. Louis, Iron Mountain and Southern Railway
Company,
By
President.
Attest :
Secretary.
A
O
[copy of coupon.]
$30. $30.
The St. Louis, Iron Mountain and Southern Railway Company
will pay the bearer, at its Financial Agency in the City of New York,
Thirty Dollars in lawful money of the United States, on the first day
of , being six months' interest then
due on its First Mortgage Bond, Memphis Branch.
Treasurer.
[The first coupons due March x, 1886, are for ten dollars each.]
[copy of trustee's certificate.]
It is hereby certified that the within bond is one of the bonds
issued under the said mortgage within mentioned.
Trustee.
[copy of registration.]
This Bond may be registered in the owner's name on the Com¬
pany's books , such registry being noted on the
Bond by the Company's Transfer Agent, after which no transfer
shall be valid unless made on the Company's books by the registered
owner, and similarly noted on the bond, but the same may be dis¬
charged from registry by being transferred to bearer, after which it
shall be transferable by delivery, but it may be again registered as
before. The registry of the Bond shall not restrain the negotiability
of the coupons by delivery merely.
It is expressly agreed that all bonds secured hereby shall be used
for the purpose of providing means for the construction of the said
Memphis Branch of the Railway Company's line of road, hereinafter
more particularly described, and for the expenses necessary and inci¬
dent thereto, and any other lawful purpose, and shall be certified
from time to time by the Trustee, at a rate not exceeding twenty-
two thousand five hundred dollars per mile of completed road, when-
6
ever and as often as five or more miies of said of said branch is com¬
pleted, and the fact of such completion is certified to by its Chief
Engineer.
It is expressly agreed, for the guidance and protection of the
Trustee in the certification of bonds hereunder, that bonds are only
to be certified by the Trustee, and delivered to the party of the first
part by said Trustee, upon the written application of the party of
the first part, expressed through a resolution of its Board af Direc¬
tors or Executive Committee, adopted at a regular or special
meeting called for that purpose, wherein it shall be stated what
amount of bonds are required at the time, and the purpose for
which the same are required, accompanied with the said certificate
of the Chief Engineer of the Railway Company, as above provided ;
which resolution and certificate or certificates shall be full protection
to the Trustee to certify and deliver the bonds pursuant to such res¬
olution, and to make and sign the certificate endorsed upon the said
bonds. No duty is imposed upon the Trustee to look behind such
resolution or certificate before certifying the bonds and delivering the
same.
No bonds to be issued under the provisions of this mortgage by
the said party of the first part shall be obligatory upon said party
until said Trustee shall endorse' thereon and duly sign a certificate
that the bond so endorsed is one of the bonds secured by this instru¬
ment.
It is expressly agreed, anything in this Indenture to the con¬
trary notwithstanding, if, in the progress of making said Memphis
Branch herein contemplated to be built, it shall be found cheaper or
more advantageous for the Railway Company to acquire by pur¬
chase, consolidation, permanent lease, or otherwise, from some
other company or person a railroad, or a part of a railroad
already constructed or partially constructed, that the party
of the first part is at liberty to do so ; and if this is done, it is fur¬
ther agreed that bonds under this Indenture may be certified in re¬
spect of such road or roads so acquired, but only on the following
conditions, to wit, that the road or roads so acquired shall be so con¬
veyed or transferred as to be and become part of the said Memphis
Branch of the party of the first part, and become or be made subject
7
to the trusts and lien created by this Indenture. If the title or in¬
terest thus acquired is free from encumbrances, bonds may be issued
in respect thereof to the extent of twenty-two thousand five hundred
dollars per mile. If the road so acquired is subject to encum¬
brances, the principal amount of such existing encumbrances must
be deducted from the twenty-two thousand five hundred dollars per
mile limited herein, and bonds certified only in respect of the residue.
The resolution of the company that these conditions have been com¬
plied with shall be full authority and protection to the Trustee for
the certification of bonds in conformity with such resolution.
It is expressly agreed by and between the parties hereto and
each holder of any bond secured hereby, anything in the bond or
this indenture to the contrary notwithstanding, that the party of the
first part may, on any interest day after five years from the date here¬
of, on giving sixty days' previous notice thereof, printed ten times in
two newspapers published in the City of New York, redeem the
bonds secured by this indenture, by the payment in lawful money of
the par amount thereof and five per cent, premium thereon in ad¬
dition to any interest then accrued thereon ; and that such amount
may be deposited in lawful money for the holder thereof with the.
Trustee named therein, after which deposit such bond shall cease to
bear or draw interest.
Uxrtw, this ÍmÍJCÍVtrtXT fuvtlxet WitUJCSSJCtlX, That said
party of the first part, in consideration of the premises and of the
sum of one dollar to it paid by the party of the second part before
the ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and for the purpose of securing the payment
of the principal and interest of the bonds aforesaid, hath granted,
bargained, sold, assigned, released and conveyed, and by these
presents doth grant, bargain, sell, assign, release and convey, unto
the said party of the second part, its lawful successor or successors
and assigns, all and singular the said Memphis Branch of its railroad,
built or to be built, extending from or near the town of Bald Knob,
White County, Arkansas, or such other point on the main line of
the said railway, in said county, or elsewhere, as the Directors
or Executive Committee of the party of the first part may
8
select or approve, eastwardly through White, Woodruff,
Cross and Crittenden or other Counties, in the State
of Arkansas, to Hopefield or West Memphis, on the
west bank of the Mississippi River, opposite Memphis, Tennessee,
or to such other point as the said Railway Company may select of
approve, the hereby granted premises to include the said Memphis
Branch as áctually constructed, even though it may be found to vary
from the general route or line above described, including the road¬
bed and superstructure and the right of way of said Memphis Branch
as it shall be built and constructed or acquired, and all lands, real estate,
rails, tracks, side-tracks, bridges, viaducts, buildings, depots, station-
houses, car-houses, engine-houses, shops, warehouses, turn-tables,
water-stations, fences, structures, erections, fixtures and appurte¬
nances, and all other things of whatever kind thereunto belonging or
in anywise appertaining, or which have been or may be acquired or
provided for use upon the said Memphis Branch, and all
lands acquired or designed for depots, warehouses and other
structures at either terminus, as well as along the line of
said railway; and all property, both real and personal, of every
kind and description, which shall hereafter be acquired for use upon
said branch railroad ; and all the corporate rights, privileges and
franchises which the said party hath and can exercise, or shall here¬
after acquire or possess of, in, to, upon or in respect of, the said
Memphis Branch, or necessary for the construction, maintenance or
operating of said Memphis Branch, or anything belonging or
appertaining, or which may hereafter belong or appertain to the
same, or any part thereof ; and also including all the rents,
issues, profits, tolls and other income of said Memphis Branch, and
all rights, privileges and franchises, properties, real and personal,
and rights and things which the said Railway Company may or shall
acquire, possess, or become entitled to for the purposes of said
Memphis Branch, or the operation, use and maintenance thereof,
and in respect of which bonds shall be issued hereunder ; and also
in case the said Trustee, or its successor or successors shall at any
time hereafter, lawfully enter into the possession of the said railroad,
with its appurtenances, hereby mortgaged, or have a Receiver
appointed for the same, any and all fuel or supplies intended for use
9
in and about the operation, repair or maintenance of said branch rail¬
road, above described, which said Railroad Company may have on hand
at the time of the said Trustee so entering into possession, or at
the time of such Receivership being granted or applied for, and all
the other property and effects, both real and personal, which said
company, at such time of the Trustee so entering into possession,
or the granting of, or application for such Receivership, may own or
possess, or be entitled unto in respect of the said branch railroad ; and
also all the estate, right, title, interest, property, possession, claim and
demand whatsoever, in law as well as in equity, present or prospec¬
tive, of the said party of the first part, of, in and to the same and
every part and parcel thereof, with the appurtenances.
gxr Bawß atxtl txr Bold, the above described premises, prop¬
erty, rights, franchises and appurtenances unto the said party of the
second part, and its successors and assigns forever, to the only
proper use, benefit and behoof of the party of the second part, its
successors and assigns forever ; and the said party of the first part
will forever warrant and defend the title thereto against all persons
whomsoever.
|[tX tXfXXSt, ÎXOXXOCtlxeloSS, for the equal pro rata benefit and
security of all and every the persons or corporations who may be or
become holders of any of the bonds issued hereunder, without any
preference or priority of any one bond over another, or by reason of
priority in time of issue or negotiation thereof, or otherwise, and for
the uses and purposes herein declared and expressed.
The said Railway Company, the said party of the first part,
hereby covenants and agrees to and with the said Trustee, the said
party of the second part, for the benefit of the bondholders secured
thereby, that the said Railway Company will pay all lawful taxes and
assessments upon said property hereby mortgaged, at any time legally
levied and assessed thereon ; that it will suffer no mechanics', statu¬
tory or laborers' liens, which shall have priority to this mortgage, to
be created or placed on any part or portion of said railways, or any
part of the estate and property hereby mortgaged, to' the end of the
priority of this Indenture shall, at all times, be maintained, and that
10
it shall and will diligently preserve all the rights and franchises to it
granted and upon it conferred, and shall and will, at all times, main¬
tain, preserve and keep the same, and every part thereof, with
the fixtures and appurtenances, and every part and parcel
thereof, in good repair, working order and condition, and
shall and will, from time to time, make all needful and proper
repairs and renewals.
And the said Railway Company further covenants, that it will
not issue, negotiate, sell or otherwise dispose of the bonds to be
issued hereunder, in any manner inconsistent with the provisions of
these presents.
And the said Railway Company further covenants, it shall and
will at all times hereafter, and as long as any bond or bonds to be
issued hereunder shall be outstanding and unpaid, keep and maintain
an agency in the City of New York; and said Railway Company
covenants to pay the principal and interest of the bonds issued here¬
under, and also generally to do and perform all acts and things,
promises and covenants in any article or clause in this Indenture on
its part to be done, performed and kept.
Jtttd it is Ixet'JCIttT (ßratttcxl, gjeicIatteÄ ami JwçjxxeÂ,
that the aforesaid described premises, property," right, interests and
franchises hereby conveyed or mortgaged, or intended so to be, are
to be had and holden by said Trustee and its successors upon and
for the further trusts, uses and purposes following, viz :
Article First. This Indenture is upon the express condition
that if the said Railway Company, the said party of the first part,
shall well and truly pay, or cause to be paid, to the holder or
holders of said bonds, the principal sums of money therein
mentioned, according to the true intent and meaning thereof, with
the interest thereon, according to the terms and conditions thereof,
and pay, or cause to be paid, the interest coupons thereto attached,
then, and in that case, the lien or encumbrance hereby created for
the security and payment thereof, and all the estate, right, title and
interest of the said party of the second part in the property afore¬
said, shall cease and determine, and at the request of the said party
of the first part, or its assigns, this Indenture shall be satisfied and
11
discharged, and a release and satisfaction thereof shall be entered oí
record in each and all of the several counties in which this Indenture
shall have been recorded, at the cost of the said party of the first
part.
Article Second. Until default shall be made in the payment of
principal or interest, or some part of either principal or interest, as
herein provided, the said party of the first part shall possess, control,
manage, operate, use and enjoy the said branch railway,
franchise, real estate and other property, and shall receive,
take and use the rents, incomes, profits and tolls thereof for its own
uses and purposes, as if this Indenture had not been made.
But in ca¡e default shall be made in the payment of the principal
or of any interest on any of the aforesaid bonds, issued under and
secured by this instrument according to the tenor thereof, or of the
coupons thereto attached, and if such default shall continue for the
period of six months after demand in writing made for the payment
of the same at the financial agency of the said party of the first
part, aforesaid, in the City of New York, it shall be lawful, unless
such default be waived as hereinafter provided, for the said Trustee,
the said party of the second part, or its successor or successors in
this trust, by itself, its attorneys, or agents, to enter in and upon,
and take possession of all and singular the railways, premises and
property, rights and interests, hereby conveyed and mortgaged or
intended so to be, and each and every part thereof, and to exclude
the said party of the first part and its agents wholly therefrom, and
to hold and use the same, and to control, manage and operate, by
its superintendents, managers, receivers, agents, servants, employees
and attorneys, the said railways, and to manage and conduct the
business thereof, and to make, from time to time, at the expense
of the trust estate, all repairs and replacements, and such useful
alterations, extensions, additions and improvements thereto,
and all other matters and things which will promote the
interests of the parties hereto, as may seem to it, the said
Trustee, judicious and proper, and to collect and receive all tolls,
freights, incomes, rents, issues and ' profits of the same and every
part thereof, and, after deducting the expenses of operating said rail-
12
ways, and of conducting its business, and paying all proper and
legitimate debts and obligations, and for all repairs, replacements,
alterations, extensions, additions and improvements, as aforesaid,
and all taxes, assessments and other proper charges upon the said
property and premises, or any part thereof, as well as just and reason¬
able compensation for the services of the said Trustee, and the ser¬
vices of all agents, clerks, servants and other employees, properly
engaged or employed, including reasonable attorneys' and solicitors'
fees, then to apply the moneys arising as aforesaid to the payment of
interest in arrear, or which shall become due on the outstanding
bonds secured hereby, in the order in which such interest shall be
or become due, ratably to the person holding the coupons therefor,
and after paying all interest which shall have become due, to apply
the same to the payment of the principal of the aforesaid bonds
which may, at that time, be due and unpaid, ratably, without dis¬
crimination or preference.
Article Third. In case default shall be made in the payment of
any interest upon any of said bonds, or of the principal thereof, as
aforesaid, and shall continue for six months after written demand
made for payment, as aforesaid, it shall be lawful, unless such default
be waived as herein provided, for said Trustee, the said party of the
second part, or its successor or successors in this trust, after entry as
aforesaid, or other entry or without entry, by its attorney or at¬
torneys, agent or agents, to sell and dispose of all and singular the
said railways and appurtenances, property and premises, rights, in¬
terests and franchises hereby conveyed or mortgaged, or intended so
to be, at public auction to the highest bidder, at such time and
place in the City of Little Rock, in the State of Arkansas, as
they may designate, having first given public notice of such sale by
advertisement, published not less than five times a week for eight
consecutive weeks in one or more newspapers published in the City
of New York, with the right to adjourn such sale or sales from time
to time in the discretion of such Trustee, giving reasonable notice of
such adjournment, and after so adjourning to make the sale at the
time and place to which the same may be adjourned, and on the
consummation of the sale upon the terms and conditions thereof, to
13
make and deliver to the purchaser or purchasers thereof good and
sufficient deed or deeds in law for the same in fee simple, which
sale, made as aforesaid, shall be a perpetual bar, both at law and in
equity, against the said party of the first part and all other persons
lawfully claiming, or to claim, the said railways and appurtenances,
property and premises, rights, interests and franchises, or any part
thereof so sold, by, from, through or under it. And after deducting
from the proceeds of such sale, just allowances for all expenses
of said sale, including attorney's and counsel fees,
and all other expenses, advances and liabilities which may have been
made or incurred by the said Trustee in operating said railways, or
in maintaining the same, or in managing their business, while in
possession thereof, and all payments which may have been made by
it for taxes and assessments, and other proper charges upon the
said railways and appurtenances, property and premises, rights, in¬
terests and franchises, or any part thereof, as well as reasonable com¬
pensation for its own services, then to apply the said proceeds to the
payment of the principal of such of the aforesaid bonds as may be
at such time unpaid, whether the same shall have previously become
due or not, and of the interest which shall, at that time, have ac¬
crued on the said principal and be unpaid, without discrimination or
preference, but ratably, to the aggregate of said unpaid principal and
accrued and unpaid interest added together, and after satisfaction of
all said bonds secured hereby, with the interest thereon, to pay over
the surplus of such proceeds, if any, to the said party of the first part,
or to such party as may then be entitled to receive the same.
This provision is cumulative to the ordinary remedy by foreclosure
in the courts, and the Trustee herein or its successor or successors
in this trust, upon default being made as aforesaid, may at its dis¬
cretion, and upon the written reques.t of the holders of the majority
in value of the said bonds then outstanding and unpaid shall (upon
being properly indemnified), institute proceedings to foreclose this
mortgage or deed of trust, in such manner (by sale under the power
herein given, or by suit) as the majority of the said bondholders may
direct, and if no such direction is given in his behalf, then in such
manner as to the said Trustee may seem most expedient
It is expressly agreed between the parties hereto that for the debt
14
or bonds secured hereby the said Railway Company, the said party
of the first part, is liable, in personam, and any deficit after exhaust¬
ing the mortgaged security may be enforced against the said com¬
pany or its other property, but not against the stockholders indi¬
vidually, as to whom there is and shall be no liability on said bonds,
or in respect thereto, or the issue thereof.
Article Fourth. In case default shall be made in the payment
of any semi-annual installment of interest on any of the said bonds,
at the time and in the manner in the said bonds and interest cou¬
pons provided, and if such default shall continue for the period of
six months after due demand made for payment, as aforesaid, then,
in such case, the principal sum of all the said bonds secured hereby
shall, in case a majority in interest of the holders of the said bonds,
in writing, under seal, so elect, become and be immediately due and
payable, anything contained in the said bonds to the contrary not¬
withstanding. And a majority in interest of the holders of said
bonds may, by writing, under their hands and seals, executed at a
meeting of the said bondholders, or without such meeting, declare
or instruct the then Trustee in this trust to declare the said principal
of the said bonds to be due and immediately payable, or may waive,
or may instruct the said Trustee to waive, any default in the pay¬
ment of principal or interest, on such terms and conditions as such
majority in interest may deem proper; provided always, and it is
hereby declared, that no such action of the Trustee or bondholders
shall extend to or be taken to affect any subsequent default or to
impair the rights resulting therefrom. But subsequent defaults in
the payment of principal or interest may, in like manner, be waived
at any time before the entry of a decree of foreclosure, by a majority
in interest of the bonds secured hereby.
Meetings of the holders of the said bonds hereby secured, for the
determination of, or action upon, any of the questions upon which,
by any of the provisions hereof, the majority in interest of said bond¬
holders may have the right to decide, may be called by the then Trus¬
tee, or in such other mode as may be, from time, to time fixed by
such majority in interest of the holders of said bonds in respect to such
meetings, and until said bondholders shall so act. such powers may
15
be exercised by the said Trustee in this trust; and all acts and reso¬
lutions of the said bondholders affecting the rights or remedies, or
for the benefit of the said bondholders, or the duties of the Trustee,
or the interest of the trust hereby created, shall be authenticated by
the signatures of all the persons assenting thereto, as well as by a
record of the proceedings to be kept of any such meetings.
But it is understood and hereby expressly declared and agreed,
that no act or resolution of any meeting of bondholders, or of the
Trustee, nor any act or election of, or instrument executed by, a
majority in interest of all said bonds, shall impair, control or
affect the rights, interests or remedies, legal or equitable, of any
non-assenting bondholder, except in the particulars and to the extent
to which the same is expressly made controlling by the provisions
contained herein.
Article Fifth. The said party of the first part shall and does
hereby covenant and agree to, and with the said parties of the second
part, and their successor or successors in this trust, on behalf and
for the benefit of the said bondholders intended to be secured
hereby, that it will, from time to time, and at all times hereafter,
upon reasonable request, make, do, execute, acknowledge, and de¬
liver all such further acts, deeds, conveyances and assurances, for
the bettër assuring unto the said Trustee, and their successor
or successors in the trust hereby created, upon the trusts and
for the purposes herein expressed or intended, all and singular,
the premises, property, railways and appurtenances, rights,
franchises, interests, and effects, hereby mortgaged or conveyed in
trust, or agreed, or purporting, or intended so to be, whether now
owned or possessed by or vested in the said party of the first part,
or subsequently acquired by or vested in it, as hereinbefore pro¬
vided, and all other property and things whatsoever which may be
hereafter acquired in aid of, or by way of substitute for, or whatso¬
ever for the purposes of the same, or any part thereof, and all fran¬
chise now held or hereafter acquired relating thereto, including the
franchise to be a corporation, as may be deemed proper and expedi¬
ent, subject, however, to the limitations and conditions herein pro¬
vided as to after-acquired property.
16
Article Sixth. Said Railway Company, the, said party of the
first part, for itself and all other persons hereafter claiming through
or under it, and who may, at any time hereafter, become holders of
liens junior to that of these presents, hereby expressly waives and
releases all right to have the assets comprised in the security intended
to be created by these presents, marshaled upon any foreclosure or
other enforcement thereof, and it is expressly hereby agreed and de¬
clared that the Trustee herein, and any court in which foreclosure of
this mortgage, or administration of the trusts hereby created is
sought, shall have the right to sell the entire property of every de¬
scription comprised in or subject to the trusts of these presents as a
whole in one single lot, if it shall in its discretion think fit. And a
majority in interest of said bonds may, by instrument in writing,
direct the Trustee or petition the said court to sell the said property
in such manner.
Article Seventh. Said Railway Company, the said party of the
first part, for itself, its successors and assigns, and so as to bind all
persons who may claim through or under it, as assigns, junior en¬
cumbrances, lien-holders, or otherwise, doth hereby irrevocably
waive the benefit or advantage of any or all valuation, stay, appraise¬
ment, redemption or extension laws, and of all laws requiring mort¬
gages, liens, hypothecations, or other securities for money to be
foreclosed by action therefor, now existing, or which may hereafter
exist, in any State wherein the property of said Railway Company
shall be situated.
Article Eighth. And it is further mutually agreed, by and be¬
tween the parties hereto, and is hereby declared to be a condition
upon which the said party of the second part, and its successor or
successors in the trust hereby created, have assented to these pres¬
ents and accepted this trust, that the said Trustee and its successor
in the trust shall not in any manner be held responsible for persons
employed by it when selected with reasonable care, nor shall the
Trustee be answerable except for its own willful default, and in all
cases the then Trustee, the party of the second part, shall be author¬
ized to pay such reasonable compensation as it shall deem proper to
17
all the attorneys, officers, agents, servants and employees whom it may
reasonably employ in the mangement of this trust ; and that the
said Trustee and its successor or successors shall have and be enti¬
tled to just compensation for all services it may render in connection
with the management of the trust hereby created, to be paid by the
said party of the first part, out of the trust estate, nor shall the
Trustee be compelled to perform any act under this Indenture un¬
less satisfactorily indemnified.
And it is also agreed and hereby provided that the said Trustee
and its successor or successors in this trust may be removed, and a
successor may be appointed at any time, by any Court of competent
jurisdiction, upon application of a majority in interest of the holders
of the then outstanding bonds hereby secured.
And it is also agreed and hereby provided that a majority in value
of the outstanding bondholders secured hereby may, upon their own
motion at any time, with or without cause, by an instrument or in¬
struments in writing, under seal, signed by them to that effect, and
without calling a meeting of the bondholders for that purpose, remove
the said Trustee, and any successor to the trust hereby created, and
in writing under seal appoint one or more Trustees herein, whether
the last Trustee shall have been appointed by a court of competent
jurisdiciion or otherwise, anything herein to the contrary notwith¬
standing. In case of such removal and appointment of Trustees by
the bondholders, the writing shall be signed by each bondholder or his
or her agent, stating the place of residence of such holder and the serial
numbers and the amounts of the bonds, and in every case the affi¬
davit of the holder shall accompany the instruments of removal and
appointment to the effect that the party signing such instruments is
the owner or holder of the bonds for which he or she signs, and
stating the serial number and the amount in value of each bond, and
the ownèr's or holder's place of residence.
It is hereby expressly agreed and provided that in case of the ap¬
pointment, in- any of the modes herein provided, of a successor or
successors to the trust hereby created, such successor shall, without
any further conveyance, be invested with all and singular the powers
and duties hereby conferred and imposed upon the said Trustee
herein and hereby designated, so long as he or they shall remain
such successor Trustee or Trustees.
18
Article Ninth. The said Trustee, the said party of the second
part, hereby promises and agrees that in no case will it deliver or
certify any of the bonds secured hereby, except in conformity with
the provisions of this instrument.
Article Tenth. The said Trustee or any successor to this trust,
shall have the right, and is hereby empowered and authorized, on
any sale under, or foreclosure of this mortgage or deed of trust, to buy
in the mortgaged property at a price not exceeding the amount
of the mortgage bonds secured thereby, and to hold and pos¬
sess the property so purchased, and to control, manage, use and
operate the same and receive the incomes, rents, issues and profits
thereof for the use and benefit of the bondholders.
Article Eleventh. And in case of any foreclosure sale, or of
any sale made under any of the provisions of this deed of trust,
the purchaser or purchasers thereat shall be entitled, in making set¬
tlement for, and payment of, the purchase money therefor, to deliver
to the then Trustee, toward the payment of such purchase money,
any of the said bonds and interest coupons secured hereby, and held
by such purchaser or purchasers, counting such bonds and interest
coupons for such purpose at a sum not exceeding that which shall be
payable out of the net proceeds of such sale to the holder or holders
of such bonds or interest coupons, as his or their share and propor¬
tion in that character of such net proceeds of sale, after allowing for
the proportion of payment which may be required in cash for the
costs and expenses of the sale, and which proportion of cash payments
shall be determined and announced by the then Trustee or Trustees
previous to any such sale ; and if such proportionate sum shall be
less than the amount of such bonds or interest coupons, to make
such settlement by receipting thereon for the amount to be credited
thereupon.
Article Twelfth. The said Trustee or any successor to this
trust, may permit said Railway Company, the said party of the first
part, if not in default in the payment of interest on said bonds,
to sell any materials or mach'nery, right of way or depot,
or other grounds theretofore acquired for the use and
19
operations of its railways, or any part of them, and which may be
no longer necessary or useful, but upon the fundamental condition
only that the purchase money shall be received by the then Trustee,
or the property so sold to be replaced by other property of the
same character, and to become subject to the trusts and provisions
of these presents, and such purchase money shall be received
or the property sold be so replaced by other property, before any
instrument releasing the lien of this Indenture shall be delivered by
the Trustees.
Article Thirteenth. The words "Trustee," "said Trustee,"
and ' ' party of the second part, " as used in this instrument, shall
be constructed to mean the Trustee or Trustees for the time being
of this Indenture, and whenever a vacancy shall exist or any change
of Trustees shall be made, to mean the surviving or continuing,
or successor Trustee. And any surviving, continuing or successor
Trustee herein shall be possessed of, and fully competent to exercise
all the powers and duties granted and conferred by these presents
to the said Trustees named in this instrument as the parties of the
second part.
In case the Trustee shall be removed, its fees shall be paid to
the date of removal.
Article Fourteenth. And inasmuch as it is intended that
this instrument shall be recorded in the proper offices in each of the
several counties of the said State wherein the railway, property
and premises conveyed hereby or intended so to be, or some part
thereof, is situated, as nearly at the same time as possible, this
Indenture further witnesseth that, although five or more copies or
counterparts thereof are simultaneously executed by the said Railway
Company, the said party of the first part, by its President, under its
corporate seal, attested by its Secretary, in pursuance of the afore¬
said resolutions of the said company, and delivered to the said Trus¬
tee, and the said Trustee, in evidence of its acceptance of the trusts
created, has likewise executed said five or more copies or counter¬
parts ; all of said copies or counterparts so executed and delivered,
each an original, shall constitute but one and the same instrument,
20
git S'jcstxracwy LMlcreof, The St. Louis, Iron Mountain
and Southern Railway Company, the said party of the first part, has
caused its corporate name to be hereunto signed by its President,
and its corporate seal attested by its Secretary, to be hereunto
affixed; and the Trustee, the said party of the second part, has
signified its acceptance of the trusteeship herein created, by likewise
causing its corporate name to be hereunto signed by its President,
and its corporate seal, attested by its Secretary, to be hereunto
affixed, the day and year first above written.
ST. LOUIS, IRON MOUNTAIN AND SOUTHERN
RAILWAY COMPANY.
By
President.
Attest :
Secretary.
THE MERCANTILE TRUST COMPANY.
By
President.
Attest :
Secretary.
21
State of New York, J
City and County of New York, J
Be it remembered, that on this day of
A. D. 1885, before me, a Notary Public, in and for the State
and County of New York, personally appeared Jay Gould, the
President of the St. Louis, Iron Mountain and Southern Railway
Company, to me personally known to be such, who being by me
duly sworn, did depose and say, that he, said Jay Gould, resides
in New York City, State of New York ; that he, said Gould, is the
President of the said company ; that he knows the corporate seal of
said company ; that the seal affixed to the foregoing instrument is
such corporate seal ; that it was so affixed thereto by order of the
Board of Directors of said company, and that he, the said
Gould, as such President, signed the name of said company, and his
own name thereto, by the like order, as President of said company,
and he being personally known to me to be the same person whose
name is signed to the foregoing instrument, acknowledged to me
that he signed, sealed and executed the same as his own free and
voluntary act and deed, and as the free and voluntary act and deed
of the said company, for the consideration, purposes and objectss
therein stated ; and on the same day there also personally appeared
before me Louis Fitzgerald, President Mercantile Trust Company,
to me personally known to be such, who being by me severally
duly sworn, did depose and say, that he, said Fitzgerald, resides in
New York City, State of New York; that he, said Fitzgerald, is the
President of the said Mercantile Trust Company; that he knows the
corporate seal of said company ; that the seal affixed to the forego¬
ing instrument is such corporate seal ; that it was so affixed thereto,
by order of the Board of Directors of said company, and that the
said Fitzgerald, as such President, signed the name of said company,
and his own name thereto, by the like order, as President of said
company, and he being personally known to me to be the same per¬
son whose name is signed to the foregoing instrument, acknowledged
to me that he signed, sealed and executed the same as his own free
and voluntary act and deed, and as the free and voluntary act and
22
deed of the said company, for the considerations, purposes and
objects therein stated.
In witness whereof, I have hereunto set my hand and official
seal this day of , A. D. 1885.
I>ec. 22. '85
[6885]
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