^í)e ííorfolk anh iUeetern Bailroab €ompang
TO
€i)e Jiííclitg 3n0urance, ©met anö Safe Dcpoait
sEompang, ®;ru0tee.
1>aied Maj/ 4^lh, 7887.
Allen, Lane & Scott, Printers, 229-231 South Fifth Street, Philadelphia.
€l)t0 líiírentwre, Made the fourth day of May, in the
year 1881, between $l)e Norfolk otlb Koilroob ÖTotn^
pang, party of the first part, and QLl)C iFibrfitg SnBlXxance^
®ru0t anb Safe ÎD^pooit ÔTompang, of Philadelphia, party
of the second part.
tol)erea6. The Atlantic, Mississippi and Ohio Railroad
Company was formed under and pursuant to an act of the
General Assembly of the State of Virginia, entitled "An act
to authorize the formation of the Atlantic, Mississippi and
Ohio Railroad Company, approved June 17th, 1870."
^nb tol)^r^a0, The party of the first part is a railroad cor¬
poration organized under the laws of the State of Virginia,
and has succeeded to the railroad and other property, and to
the franchises, rights, and privileges of the Atlantic, Missis¬
sippi and Ohio Railroad Company, and now owns and holds
the same, subject, however, to certain mortgages and incum¬
brances (hereinafter called " divisional securities "), not exceed¬
ing, in the aggregate, a nominal or par value of five millions
of dollars.
^nb Ö3l)erea0, at a general meeting of the stockholders of
the Norfolk and Western Railroad Company, duly called
and held according to law, at the city of Norfolk, in the State
of Virginia, on the third day of May, one thousand eight
hundred and eighty-one, it was, mUr alia^ unanimously re¬
solved :—
tol)erea0, It is necessary that this company, in order to
comply with the terms of its organization, as recited in the
2
deed of conveyance from Matthew F. Pleasants, Esq., Master,
to this company, dated the third day of May, 1881, and duly
recorded, should create and issue its bonds amounting in the
aggregate to 11,000,000, and secure the payment of the
same by a mortgage upon its road, property, and franchises,
to be known as the general mortgage.
be it By the stockholders of
such company in general meeting assembled, that for the pur¬
poses aforesaid, the board of directors are fully authorized and
empowered, and are hereby given the consent of the stock¬
holders of the company, to create, issue, and negotiate from
time to time certificates of loan or bonds of the company,
coupon or otherwise, with or without deduction for taxes,with or
without a sinking fund, in such sums, either Sterling or dollar
bonds, at such times, in such series to mature at such date or
dates, bearing such rate of interest not exceeding six per cent,
per annum, in such form or forms, upon and containing such
terms and conditions as the board of directors may deter¬
mine, provided such issue or issues shall not at any one
time exceed in the aggregate eleven million (;^i 1,000,000)
dollars : and the board of directors are fully authorized
and empowered, and have and hereby are given the consent
of the stockholders of this company, to execute, deliver, and
acknowledge a deed of trust or mortgage, to be designated
the general mortgage of all the line of road, property, and
franchises of the company now possessed in such form, with
such stipulations, to such trustee or trustees, by such officer
or officers as the board of directors may deem proper, for the
purpose of securing the payment of all such bonds to be from
time to time issued, without preference, priority, or distinction
as to lien or otherwise of any one over another, so that said
deed of trust or mortgage shall be a continuing lien ; and
each and all of said bonds that may from time to time be issued
shall have the same right, lien, privilege, and security there-
3
under as though they had all been made, executed, and
delivered simultaneously on the day of the date of said
mortgage."
At a meeting of the board of directors of
the party of the first part, duly called and held subsequently to
such meeting of the stockholders of the party of the first part,
and on the same day, the following resolutions were adopted,
that is to say :—
tol)erea6^ It is necessary that this company in order to com¬
ply with the terms of its organization should create and issue
its bonds amounting in the aggregate to 11,000,000, and se¬
cure the payment of the same by a mortgage of its road, prop¬
erty, and franchises, to be known as the general mortgage.
Notö, it iô Kesotoeù, That in pursuance of
and by virtue of the provisions of its charter, in pursuance of
the resolution of the stockholders of the company passed
this day, and all other (power) and authority in it vested, the
Norfolk and Western Railroad Company, for the pur¬
poses aforesaid, shall make, execute, and deliver to the
Fidelity Insurance, Trust and Safe Deposit Company of
the city of Philadelphia, a deed of trust or mortgage of all the
line of road, property, and franchises of the company, which
mortgage shall be known as the general mortgage, and shall
be and is hereby declared to be a continuing lien to secure the
full and final payment of all the 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 aggre¬
gate eleven million (^11,000,000) dollars, that is to say, as
well the eleven million (;^ 11,000,000) dollars of 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
4
any subsequent issue or issues, but never to exceed at any one
time eleven million ($11,000,000) dollars outstanding, said
bonds to be either of the denomination of $1000 in gold coin
of the United States or £200 Sterling lawful money of Great
Britain, or of such other denominations as may be determined ;
to be numbered consecutively from one upwards, and of such
form, tenor, and effect as the company may by their board of
directors determine, at the time of the issue thereof respective¬
ly, bearing interest at a rate not exceeding six per centum per
annum, and the said deed of trust or mortgage shall be for the
benefit and security of and in trust for the holders of the said
bonds, without preference, priority, or distinction as to lien or
otherwise, of any one over another, and so that each and all of
the said bonds to be issued as aforesaid shall have the same
right, lien, and privilege under and by the said 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 mortgage to secure the
payment of the same ; "
The Norfolk and Western Railroad Com¬
pany, in pursuance of said resolution, has issued or is about
to issue a series of eleven thousand bonds for $1000 each to
be known as the First Series," and for the purpose of
securing the payment of all the bonds of the said series and
all other series which may be issued from time to time by
virtue of said resolutions, is about to execute and deliver to
the Fidelity Insurance, Trust and Safe Deposit Company of
Philadelphia, as trustee, a deed of trust or mortgage, as a
general mortgage upon their railroad, franchises, and estates,
real and personal,
«
Keôotoeïr, That the bonds of the first series to be issued
under said deed of trust or mortgage, be forthwith, or from
time to time, as may be necessary, created and issued and
5
delivered, and that the general form and substance of all the
bonds of said first series shall be in general form and substance
as follows :—
(Form of General Mortgage-bond.)
" UNITED STATES OF AMERICA.
No. ;^iooo.
State of Virginia.
$ 11,000,000
General Mortgage Loan.
" The Norfolk and Western Railroad Company acknowledges
itself to be indebted to the Fidelity Insurance, Trust and Safe
Deposit Company of Philadelphia, or bearer, in the principal
sum of One Thousand Dollars, United States gold coin,
which sum the railroad company promises to pay to the said
trust company, or bearer, on the first day of May, one thous¬
and nine hundred and thirty-one, at the office or agency of
the said railroad company in the city of Philadelphia, and also
to pay, meanwhile, interest on said principal sum half-yearly,
on the first days of May and November in each year, at the
rate of six per cent, per annum, such interest to be paid on
the presentation and surrender of the annexed coupons, and as
they severally become due, in United States gold coin, at the
office or agency of the said company in Philadelphia or New
York.
" This bond is one of a series of eleven thousand bonds, num¬
bered consecutively from i to 11,000, inclusive, all of like
tenor, for ;^iooo each, and all equally secured by a mortgage
or trust deed bearing even date therewith, made by the
Norfolk and Western Railroad Company to the Fidelity In¬
surance, Trust and Safe Deposit Company, as trustee, securing
6
said eleven thousand bonds subject to the prior lien of cer¬
tain mortgages and securities, called divisional securities, not
exceeding in the aggregate a nominal or par value of ;^5,ooo,-
ooo. But it is provided that bonds secured by said mortgage
to the amount of ^^5,137,000 shall be reserved in the hands
of the trustee for the purpose of taking up said divisional
securities : for which provision, and all other terms and con¬
ditions upon which this bond is issued, reference is hereby
made to said mortgage.
" The principal and interest of this bond are payable without
deduction for any United States or State tax whatsoever which
the said company is or may be required by law to retain
therefrom, the said company hereby agreeing to pay the same.
'^This bond shall pass by delivery or by transfer on the books
of said railroad company ; but after a registration of ownership
certified hereon by the treasurer 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 ta
bearer, and transferability by delivery has been thereby re¬
stored; but this bond shall continue to be susceptible of suc¬
cessive registration to bearer, at the option of its holder, and
the registry shall not restrain the negotiability of the coupons
by delivery merely.
" This bond shall not become valid until the certificate en¬
dorsed hereon shall have been signed by or on behalf of the
trustee under said mortgage or trust deed.
In Witness Whereof^ The Norfolk and Western Railroad
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 eighteen hundred and eighty-one.
Presidents
Attest :
Secretary,
7
(Form of Coupon.)
^30-
On the Norfolk and Western Railroad Company
will pay to the bearer at the Fidelity Insurance, Trust and
Safe Deposit Company, Philadelphia, or at its agency in the
city of New York, thirty dollars, in gold coin, being six months'
interest on bond No.
{Treas.y
Ö31)^r^ci0^ the better to identify the said bonds as those
entitled to the benefit of the security afforded by these pre¬
sents, each of them has endorsed upon it a certificate signed
on behalf of the party of the second part in the following
words—that is to say:
Trustee's Certifcate.
This bond is one of the series of bonds
numbered consecutively from one to thousand inclusive,
for ;^iooo each, issued under and secured by the mortgage or
trust deed dated
1881, and made by the Norfolk and Western Railroad Com¬
pany to The Fidelity Insurance, Trust and Safe Deposit Com¬
pany of Philadelphia, trustee.
" The Fidelity Insurance, Trust and Safe Deposit Company, Trustee,
By President^
tDf)erea0, each of the said bonds is to have attached to
it, coupons (with an engraved facsimile of the signature of
the treasurer of the first party affixed thereto, which fac-simile
is hereby declared to be the true and genuine signature of
such treasurer, and of the same force, validity, and effect as if
made with his own hand) for each half-yearly installment of
8
interest to accrue thereon, payable at the option of the holders
of the coupons, when and as they respectively become due, in
the gold coin of the United States, in the city of Philadel¬
phia or New York, at the price named in each coupon.
And at the said meeting of the board of directors, the form of
this deed of trust or mortgage having been then and there
submitted, a further resolution was adopted :—
K^oolneö, That the deed of trust or mortgage, to be exe¬
cuted, acknowledged, and delivered by the president and Sec¬
retary of this company, in its behalf, as authorized and di¬
rected this day, shall be in the form now submitted, which
form is hereby adopted and approved."
it tüa0 fttttljer By the said board at such
meeting :—
That the president be and he hereby is au¬
thorized for and in behalf of this company, and as its
act and deed, to affix its corporate seal to each of the said
bonds and to such deed of trust or mortgage, and to sign
the same as such president, and to cause the same to be duly
attested by the secretary, and when so executed, to acknowl¬
edge and deliver the same and cause the said mortgage to be
recorded.
That if before the issue and negotiation of the
entire issue of the said first series, it shall be found possible to
negotiate like bonds bearing a less rate of interest, then that
the bonds thereafter issued of said series shall specify instead
of six per cent, such lower rate of interest as may hereafter be
determined upon, both in the body of such bonds and the cou¬
pons thereunto attached."
it íüa0 By the board at such meet¬
ing
That bonds to the amount at par value of ;^5,i37,-
ooo be executed and delivered to the Fidelity Insurance,
9
Trust and Safe Deposit Company, as trustee, to be held for
the purpose of retiring the " Divisional Securities " now out¬
standing, as above mentioned, which shall be done from time
to time in the manner provided in the General Mortgage, this
day authorized and approved, it being understood that said
bonds shall be set apart for said purposes, and shall be used for
no other."
it xodQ furtl)er ßesotoeö, By the said board at such meet¬
ing
That the aggregate amount of all the bonds
secured by such mortgage (inclusive of the bonds to be reserved
to take up the divisional bonds now secured by mortgage upon
certain divisions of the railroad of the company) shall at no
time exceed the sum of eleven million 1,000,000) dollars,
but may at all times including the bonds set apart to take up
the divisional securities be equal to the sum of eleven million
11.000,000) dollars, and that after the payment and cancella¬
tion of the said bonds to be immediately issued hereunder or to
be hereafter issued under such mortgage or of any portion
thereof an equal amount of bonds may be made and issued by
the company in lieu or substitution of any which may have
been so paid or canceled, and any and all bonds so issued in
lieu or substitution shall be entitled to all the security of this
said mortgage or deed of trust which is given to the bonds
first secured hereunder, it being intended that the whole amount
of bonds to be secured by the said deed of trust or mortgage
shall not exceed at any time eleven million (;gi 1,000,000)
dollars, that they may at all times be kept up to that amount,
and that such mortgage or deed of trust shall be a continuing
security for such bonds as may hereafter be issued thereunder
as well as for the series which it is now proposed to issue."
And it was further
That all the bonds intended to be secured by the
said deed of trust or mortgage, as well the eleven thousand
10
bonds now authorized to be issued as those which may be made
and issued from time to time after the payment of the whole
of said eleven thousand bonds or any portion thereof shall
from time to time be made, executed, and issued when and as
authorized by resolution of the board of directors ; "
tl3l)er^íl0^ The Norfolk and Western Railroad Company
in pursuance of said resolution and of all and every legal power
and authority in them vested propose to make, execute, issue,
and negotiate from time to time bonds or obligations to be
secured hereby as the board of directors of the Norfolk and
Western Railroad Company may from time to time determine,
not to exceed, however, at any one time in the aggregate
eleven millions {$11,000,000) dollars.
Notx), tl)erefore, tl)i0 Mnîicnimc mtnmBctl), that the party of
the first part, in consideration of the premises and of the sum of
one dollar lawful money of the United States of America to
it paid by the party of the second part, at or before the enseal¬
ing 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 said eleven thousand bonds,
to be issued and negotiated as aforesaid, and also any and
all bonds that may hereafter be issued in substitution or lieu
thereof in pursuance of the provisions of this mortgage or
deed of trust, according to the true intent and meaning of the
said bonds and of the coupons annexed to the same respect¬
ively, granted, bargained, sold, aliened, remised, released,
conveyed, and confirmed, and by these presents öotl) grant,
bargain, sell, alien, remise, release, convey, and confirm unto
the party of the second part, and to its successors and assigns
for ever, ali and aingttlar the main line of the railroad of the
first party, formerly known as the Atlantic, Mississippi and
Ohio Railroad, extending from Norfolk, in the State of Virginia,
to the State line at Bristol-Goodson, between the States of
Virginia and Tennessee, and all branches thereof now con¬
structed, including the road-bed, superstructure, and right of
II
way of the said main line of railroad and of its said
branches, and the real estate, rails, tracks, side tracks, bridges,
buildings, depots, station-houses, shops, warehouses, struc¬
tures, erections, fixtures, and appurtenances of every kind
and description thereunto belonging, or in any wise appertain¬
ing, including all lands acquired or designed for depots,
warehouses, and structures at either terminus, as well as
along the line of the said railroad and of its said branches,
and all other property, real and personal, of every kind and
description, of the first party, now owned and possessed by it,
together with its franchises, rights, and privileges, and all of
its tolls, earnings, and income, t0getl)er with all rolling
stock and equipment of the said main line and of the said
branches, whether such rolling stock and equipment be now
owned and possessed or be hereafter acquired by the party
of the first part, cAqo all of the estate, right, title, inter¬
est, property, possession, claim, and demand whatsoever, as
well in law as in equity, of the party of the first part of, in, and
to the same and every part and parcel thereof with the appur¬
tenances.
ttîlù to t)o[ö, all and singular, the above-mentioned
and described premises, together with the appurtenances, unio
and to the use of the party of the second part, its successors
and assigns forever (subject to the payment of the said division¬
al securities). 3n trust nrt)ertl)rle6S upon the trusts herein¬
after set forth and declared, for the equal benefit and security
of all and every the person, persons, body and bodies corpo¬
rate, who shall respectively be, or at any time become, the
holder or holders of the said eleven thousand bonds, and also
any and all bonds that may hereafter be issued in substitution
or lieu thereof, under the security of this deed of trust [of]
(or) mortgage, or of such of them as shall be issued and ne¬
gotiated by the party of the first part, and be at any time out¬
standing, or of the coupons thereon respectively, without pref-
<erence to the holder or holders of any or either of the said
12
bonds or coupons respectively, over any of the others, by
reason of priority in the time of issuing or negotiating the
same bonds respectively ;
IJroniöeö altoaga, and these presents are upon the express
condition that, if the party of the firs tpart, or its successors or
assigns, shall well and truly pay, or cause to be paid, to the hold¬
ers of the said bonds, or such of them as shall be issued and
negotiated as aforesaid, the principal and interest moneys se¬
cured thereby respectively, when and as the same shall becorne
due and payable, according to the tenor and effect of the said
bonds, then these presents, and the estate hereby granted, shall
cease, determine, and be null and void.
iFirst.—it Í0 C0t)ett(inteù anù by and between the
parties hereto that until default shall be made by the party of the
first part, its successors or assigns, in the payment ofthe principal
or interest, or some part thereof, of the said bonds, or some
one of them, or in the fulfillment of some or one of the agree¬
ments herein contained on its part, the party of the first part,
its successors and assigns, shall be suffered and permitted to
possess and enjoy the said premises with their appurtenances,
and all and singular the rights and franchises hereinbefore
described, and to receive, take, and use the tolls, income, earn¬
ings, and profits thereof.
—J8ut if default shall be made by the party of the
first part in the payment of the principal or interest moneys
mentioned in the said bonds or any or either of them or any
part thereof respectively, according to the tenor and effect,
true intent and meaning of the said bonds or in the fulfillment
of any of the agreements herein contained on the part of the
party of the first part, and if such default shall continue for
the period of sixty days, then and in that case the party of
the second part and its successors are hereby authorized
and empowered upon the written request of the holder or
13
holders of not less than one-fifth of the said bonds then re¬
maining outstanding and unpaid, to enter into and upon and
take and hold possession of all and singular the premises,
estate, franchises, rights, privileges, and property hereby
granted and conveyed, or intended so to be, and by itself or
its officers, or by one or more agents, to take, collect, and
receive the income, tolls, earnings, and profits thereof, and the
party of the second part will then apply the same to the fol¬
lowing payments as they shall from time to time fall due and
become payable.
Firstly.—Of the expenses of operating, maintaining, and re¬
newing the said railroad, and of all taxes and assessments
which shall be levied and assessed upon the premises thereof.
Secondly.—Of all expenses, costs, charges, and counsel fees
incurred by the party of the second part or its successors,
together with a reasonable remuneration for its or their services.
Thirdly.—Of the interest of and upon the said divisional
securities remaining uncanceled.
Foiirthly.—Of the interest already accrued and as the same
shall thereafter accrue upon the general mortgage bonds,
so far as they may then respectively be outstanding.
Lastly.—Of the principal of the general mortgage bonds then
outstanding, and, if after the satisfaction tfiereof a surplus
shall remain, to pay over the same to the party of the first part
or to such other party or parties as may be entitled thereto.
®l)irîr-—^nîr also, If default shall be made in the payment
of the principal or interest moneys mentioned in the said bonds
hereby secured, or any or either of them or any part thereof,
according to the tenor and effect, true intent and meaning of
the said bonds, or in the fulfillment of any of the agree¬
ments herein contained on the part of the party of the first
14
part, and if such default shall continue for the period of six
months after demand dul}'- made, then immediately upon the
expiration of such six months, the whole principal money
mentioned in and secured by the said bonds, together with
the interest accrued thereon, shall become and be considered
as due and payable in the same manner and to the same effect
as if the period limited for the payment thereof had expired,
and the party of the second part or its successors in the said
trust may, and it and they are hereby authorized, empowered,,
and directed, upon the written request of the holder or holders
of not less than one-fifth of the said bonds then remaining
outstanding and unpaid, to cause the whole of the said prem¬
ises hereinbefore described, and hereby granted and conveyed,,
or intended so to be, with their appurtenances, and all
benefit and equity of redemption of the party of the first part
and its successors and assigns therein, to be sold at public auc¬
tion in the city of Philadelphia or New York, subject, however,,
to such of the said divisional securities as shall at the time
being remain uncancelled, first giving not less than ninety day's
previous notice of the time and place of such sale, by publica¬
tion in one or more newspapers respectively published in the
said city of New York, State of New York, and in
the cities of Richmond and Norfolk, in the State of Vir¬
ginia, in the cities of Philadelphia, in the State of Penn¬
sylvania, and Baltimore, in the State of Maryland, re¬
spectively, and giving such other notice of such sale as
may be required by law, if any other notice be so required.
And it shall be lawful for the party of the second part or its suc¬
cessors making such sale, and it and they are hereby authorized,,
empowered, and directed, as the attorneys or attorney of the
first party, by these presents duly constituted and appointed for
that purpose to make, execute, and deliver to the purchaser
or purchasers at such sale, all such deeds and conveyances as
shall be necessary or proper to convey and assure to and vest
in him or them the premises so sold, and every part and parcel
thereof, and all the estate, right, title, and interest of the
15
party of the first part and its successors and assigns therein,
subject as aforesaid, freed from all liability to see to the ap¬
plication of the purchase-money, and without any obligation
to inquire into the necessity, expediency, or authority for any
such sale ; and such sale, and the deeds and conveyances so
to be thereupon executed, shall be valid and effectual for ever,
and shall be a perpetual bar, both in law and equity, against
the party of the first part and its successors and assigns, and
against all persons claiming or to claim the said premises or
any part thereof, by, from, or under it, or them, or any of
them.
iFottrtJ),—%nh it is hereby further covenanted and agreed
that the trustee shall and will, upon the written request of
holders of a like amount of said bonds then outstanding, and
upon security and indemnity, or without such request
or security or indemnity, in their own discretion, the
trustee may proceed to protect and enforce the rights
of the bondholders under these presents by a suit or suits
in equity or at law, whether for the specific performance
of the stipulated covenants and agreements, or any of them,
contained herein on the part of the party of the first part to
be kept and performed, whether in aid of the execution of
powers herein granted, or otherwise, as the trustee, being
advised by counsel learned in the law, shall deem most effec¬
tual to protect and enforce such rights ; it being understood
and it is hereby expressly declared, that the rights of
entry and sale hereinbefore granted are intended as cumu¬
lative remedies additional to all other remedies allowed by law,
and that the same shall not be deemed in any manner what¬
ever to deprive the trustee or the beneficiaries under this trust
of any legal or equitable remedy by judicial proceedings con¬
sistent with the provisions of these presents, according to the
true intent and meaning thereof : Provided always^ And it is
hereby expressly declared and agreed, that no holder or holders
of a bond or of any bonds, coupon or coupons secured hereby
i6
shall have the right to institute any suit, action, or proceeding
in equity or in law for the foreclosure of this indenture or the
execution of the trusts thereof, or for the appointment of a
receiver, or for any other remedy, without first giving notice in
writing to the trustee of default having occurred and continued
as aforesaid, and unless a one-fifth in amount of the holders of
bonds then outstanding have made request in writing to the
trustee as above provided, and have afforded them a reasonable
opportunity to proceed to exercise the powers hereinbefore
granted, or to institute such action, suit, or proceeding in
its the said trustee's own name, and have also offered to the
trustee adequate security and indemnity against the costs,
expenses, and liabilities to be incurred therein or thereby ;
and such notification, request, and offer of indemnity are
hereby declared to be conditions precedent for such execu¬
tion of the powers and trusts of this indenture to any such ac¬
tion, or cause of action, for the foreclosure, for the appoint¬
ment of a receiver, or for any other remedy hereunder: And
provided^ also, That neither the trustee, nor the holder or
holders of the bonds intended to be hereby secured, or any
of them, shall sell the premises hereby mortgaged, or in¬
tended so to be, or any part thereof, or institute any suit,
action, or procedure, in law or equity, for the foreclosure
hereof, or for the appointment of a receiver, otherwise than
in the manner herein provided.
ififtl).—%nù itÍ0 l)mb2 îreclarjeîr axib agreeîr that the party of
the second part, or its successors in the said trust, shall out of the
proceeds of such sale, or of any sale which shall under judicial
proceedings or otherwise be made of the said premises in enforce¬
ment of the security afforded by these presents, in the first place
pay and retain the costs and expenses attending such sale,
and all counsel fees and other expenses incurred by it or them
in reference to the same, and a reasonable remuneration for
its or their own services in the premises. ÎÂnô also any bal¬
ance which may be due to it or them on account of any dis-
17
bursements or expenses paid or incurred in and about the
care and management of the said premises, subsequent to the
taking possession thereof by it or them, including the reason¬
able remuneration of any agent or agents who may be em¬
ployed in or about such care and management, ^tlù shall
apply the residue of the proceeds of such sale, or so much
thereof as may be necessary for that purpose, to the payment,
without preference of the whole amount of principal and in¬
terest which shall then be owing and unpaid in respect of the
said bonds hereby secured, or any of them, and of the matured
coupons of the said bonds respectively, principal and interest.
in case of a deficiency of such proceeds, to pay in full
the whole amount due or unpaid in respect of the said bonds
and matured coupons, they shall respectively be paid, rateably
and without preference, in proportion to the amounts so due
and unpaid, any surplus which may remain after the
full payment as aforesaid of the principal and interest of all of
the said bonds, shall be paid over to the party of the first part
or its successors or assigns upon lawful demand being made
therefor.
the party of the first part doth hereby further
covenant, promise, and agree with the party of the second
part, its successors and assigns, that in case of any default on
its part, as aforesaid, it will not set up, claim, or seek to take
advantage of any valuation, stay, extension, or other law or
laws which may then exist in order to prevent or hinder the en¬
forcement of these presents or the absolute sale of the said
premises as hereinbefore provided, without and free from ap¬
praisement, valuation, stay, or other condition or hindrance,
but will and hereby does waive the benefit of any and all such
law or laws, and consents and agrees that a sale of the said
premises under these presents shall have immediate effect, and
shall vest in the purchaser or purchasers thereof an absolute
title to the said premises, subject as aforesaid upon the pay¬
ment of the purchase-money by him or them, and the comple¬
tion of his or their purchase.
i8
—ÎÂ.UÙ it is further understood and agreed between
the parties hereto, that at any sale of the aforesaid property,
railroad appurtenances, and franchises, the trustee may bid for
and purchase, or cause to be bid for and purchased, the same,
for and on behalf of all the holders of the bonds hereby secured
and then outstanding, in the proportion of the respective in¬
terests of such bondholders, upon such terms and conditions
and for such price (not exceeding the total amount of such
bonds then outstanding, together with accrued interest thereon)
as shall be provided and directed by the holders of a majority
in value of the said bonds then outstanding. In case of a
sale of the mortgaged premises, either by the trustee or in
the course of judicial proceedings as hereinbefore provided,
the purchaser or purchasers at such sale in making payment of
the purchase-money and making settlement thereof, after
making a cash payment sufficient to cover the costs and ex¬
penses of the sale and all other charges which must be pro¬
vided for in actual cash, shall have the right to deliver and pay
to the trustee and turn in and use towards the payment of the
purchase-money, any of the bonds or coupons held by him or
them, to or toward the payment of which the net proceeds of
such sale shall be legally applicable ; the amount of such
bonds or coupons so to be paid in to be determined and fixed
at a sum which shall, upon a proper distribution and account¬
ing for such proceeds, be equal to the share or proportion
payable out of such net proceeds to such purchaser or pur¬
chasers as the holder or holders of such bonds or coupons,
and in the event of a purchase of the whole property, as afore¬
said, by said trustee, the right and title thereto shall vest in
said trustee, in trust for the purchasers, and each holder of
bonds or coupons shall have an interest in the property, so pur¬
chased, in the proportion that his bonds and coupons bear to
the entire issue of bonds and coupons outstanding ; and the
said trustee shall take such lawful measures as may be deemed
necessary to organize a new company for the benefit of those
for whom the purchase was so made, and the trustee so pur-
19
chasing shal] make such conveyance or conveyances of the
premises so purchased to such new corporation, as may be
deemed necessary.
it is further understand and agreed between the
parties hereto, that the trustee shall at all times have full power
and authority,to be exercised in its own discretion,and not other¬
wise; to release and convey to any party or parties who may be
designated in writing by the said party of the first part to re¬
ceive the same, or to release from the lien and operation of these
presents, in such other manner as the trustee may deem proper,
any portion of the premises hereinbefore granted, which may be
appurtenant to the said railroad, but which, in the opinion of
the trustee, shall be unnecessary for use in connection there¬
with, and which shall have been acquired or held for stations,
depots, shops, or other building, or for a supply of fuel, gravel,
or other material; and also to convey and release as aforesaid,
on like request, any lands not occupied by the track which may
become disused by reason of a change of the location of any sta¬
tion-house, depot, shop, or other building connected with said
railroad, and such lands occupied by the track and adjacent to
such station-house, depot, shop, or other building, as the said
party of the first part may deem it expedient to disuse or aban¬
don, by reason of such change ; and the trustee may consent
to any changes in the location of the track, or of station-houses,
depots, shops, or other buildings, which, in the judgment of the
party of the first part, shall have become expedient, and make
and deliver the instruments necessary or proper to carry the
same into effect ; but any lands which may be acquired for per¬
manent use, in substitution for any so released, shall be con¬
veyed to the trustee upon the trusts of these presents ; and the
proceeds of any and all lands and premises for which others
shall not within a reasonable time be required to be substituted
shall be paid over to the trustee, to be by it applied to the
purchase or redemption of bonds hereby secured and then out¬
standing, which bonds shall when so purchased or redeemed,
20
be cancelled, and surrendered to the said party of the first part,
and the trustee shall also have full power to allow the said party
of the first part from time to time to dispose of, according to its
discretion, such portion of the machinery, tools, implements, and
material which shall be at any time acquired or held for the use
of said railroad, and shall have become unfit or unnecessary for
such use ; but any and all new or other machinery, tools, imple¬
ments, and material which may be acquired in substitution for
any so released, shall, by virtue and force hereof, become and
be, immediately upon the acquisition thereof, subject to the lien
and operation of these presents without any new conveyance
or transfer or other act or proceeding whatsoever, and the pro¬
ceeds of all sales of machinery, tools, implements, or materials
acquired or held for use on said railroad, which may not be
invested in new or other machinery, tools, implements, or
material for use in connection with said railroad, shall be paid
over to the trustee, to be by them applied to the purchase and
redemption of bonds hereby secured and then outstanding, as
hereinbefore provided.
Nitttl).—it is further understood and agreed between the
parties hereto, that the said party of the first part shall hereafter
keep at its office, in the city of Philadelphia, and at such
other place or places as may be determined (upon) from time to
time by the party of the first part, an appropriate book or
books to be designated the " Register of the General Mort¬
gage Bondholders," for the purpose of registry and transfer of
the bonds secured and to be secured hereby, in accordance with
the terms of said bonds ; and any and every holder of bonds
secured hereby shall be entitled to have his name and address,
and the number and denomination of any of the said bonds
held by him, entered therein, upon presenting at the said office
a written statement of the said particulars, signed by himself,
and, if required, duly verifying his title to the said bonds by the
production thereof, or upon written order, duly verified, of the
person last registered as the holder. The trustee shall have
21
free access at all reasonable hours and times to such bond reg¬
istry, and shall from time to time, on request in writing, be
furnished wiih a copy thereof.
—Ííltíb the party of the first part for itself its successors
or assigns, doth hereby further covenant, grant, and agree to>
and with the p<\rty of the second part, and to and with the re¬
spective person or persons, and corporation or corporations,
who shall at any time become holders of the said bonds and
coupons hereby secured or any of them, that the party of the
first part, its successors and assigns, shall and will at any time»
and from time to time hereafter upon request, make, do, exe"
cute, and deliver all such further and other acts, deeds, and
things as shall be reasonably devised or required to effectuate
the intention of these presents, and to assure and confirm to
the party of the second part or its successors, all and singular
the property and estate, real and personal, hereinbefore de¬
scribed and hereby intended to be granted, and so as to render
the same available, for the security and satisfaction of the said
bonds and coupons according to the [ex](in)tent and purpose
herein expressed.
it Í0 further understood and agreed by and
between the parties hereto, that the party of the second part
may resign and be discharged from the trusts created by these
presents, by giving notice to that effect, in writing, to the par¬
ty of the first part, at least three months before such resigna¬
tion shall take effect, and that in case of any such resignation,
or if the party of the second part should cease to exist, or
for any cause become partially or entirely unable, indepen¬
dently, to perform the trust created by these presents, or
if otherwise, the trusteeship, under these presents, should,
at any time during the continuance of these presents, be¬
come vacant, a successor or successors of the party of the
second part may be appointed by the holders of a majority
in interest of the said bonds hereby intended to be secured.
22
and at the time being outstanding, by an instrument in writ¬
ing to that effect, signed by them, or if it should prove imprac¬
ticable, after reasonable exertions, to appoint a successor or
successors in that way, and such vacancy shall remain unfilled
for the space of six months, that an application on behalf of
the holders of all of said bonds hereby secured may be made
on due notice to the party of the first part, by the holders of one-
tenth of the bonds then outstanding, to any court of competent
jurisdiction, to appoint such successor or successors, and the pro¬
visions aforesaid shall apply to such successor or successors, and
he and they may resign and be discharged, and any vacancy thus
or otherwise occurring in the said trusteeship, at any time
during the continuance of the trusts by these presents created,
may be filled in the way above provided, in reference to the
appointment of a successor of the party of the second part.
®t33elftl).—it is hereby further covenanted and agreed
that any successor or successors of the party of the second part
or any other new trustee appointed as aforesaid shall immedi¬
ately upon his appointment, and without any further act, deed,
or conveyance, become and be vested with all of the estate,
trusts, rights, powers, and duties of the trustee in whose place
he shall have been appointed, but nevertheless the respective
parties hereto and their respective successors and assigns shall
and will upon request make, execute, and deliver all such con¬
veyances and assurances, or other instruments as shall be ap¬
propriate, to vest in and confirm and assure to such new trustee
such estate, trusts, rights, powers, and duties according to the
intent above expressed.
the party of the first part, for itself and its
successors and assigns, doth hereby further covenant and agree
with the second party and with the respective persons and
bodies corporate who may at any time become holders of the
said bonds or coupons hereby secured, or any or either of them,
that ;^S,137,000 of the general mortgage bonds secured
23
hereby, shall be reserved and held by the trustee to be used
and employed in acquiring by exchange, purchase, or otherwise
the said divisional securities, and that none of the said bonds
or their proceeds shall be used and employed for any other
purpose (except as hereinafter provided) ; that all of
the ^5,137,000 bonds, having been deposited with the
second party, shall be held by it as the custodian of
the same until they shall be required to be used for the pur¬
poses herein mentioned, when upon the order or direction of the
party of the first part they shall, from time to time as so re¬
quired, be delivered to the latter or to whomsoever the latter
may direct, upon there being deposited with the party of the
second part the proceeds thereof received by the party of the
first part or the divisional securities which shall be acquired
by means of the same. That the said bonds shall be
from time to time disposed of for cash or exchanged for
such divisional securities. And such cash proceeds shall
be employed in purchasing such divisional securities, at such
rates and upon such terms as shall be prescribed or directed
by the party of the first part, but so that as long as any of said
divisional securities remain unacquired there shall always be left
in the hands of the party of the second part of such bonds and of
the unused cash proceeds of such of them as may have been sold
for cash, an amount sufficient, taken together, to represent such
divisional securities at the time being remaining unacquired, esti¬
mating the latter at par, and the said bonds at ninety-five per
cent, of their par value, exclusive of any interest which may
have accrued thereon. That all of the said divisional securities
which may be acquired with the proceeds of any of the said
bonds that may be sold for cash or by an exchange or other use
of the said bonds, shall be deposited with the party of the second
part, and it shall hold the same uncanceled, and without
their lien being impaired, as an additional security for the pay-
ment of the principal and interest of the said eleven thousand
bonds or such of them as may be issued or negotiated as
aforesaid, and all such divisional securities or bonds so acquired
24
and as acquired shall be stamped by the party of the second part
held by the trustee under the deed of trust or mortgage dated
April, [May 4th] 1881, of the Norfolk and Western Railroad
Company to The Fidelity Insurance, Trust and Safe Deposit
Company, Trustee, under and for the purposes of the thirteenth
provision of said deed of trust or mortgage." But from time
to time whenever all of the bonds secured by any one of the
divisional mortgages or deeds of trust shall have been acquired
the bonds secured by such divisional mortgage or deed of trust
shall be canceled, and the lien of the same upon any portion
of the said railroad and other property satisfied and discharged.
It is understood, however, that in the mean time the cou¬
pons upon such divisional securities which shall be so ac¬
quired shall be canceled by the party of the second part and
surrendered to the party of the first part from time to time
as they become due, provided that at such time the ma¬
tured coupons upon such of the said eleven thousand bonds
as shall have been issued by the party of the first part shall have
been duly paid. And that if after all of the said divisional
securities shall have been acquired and canceled, any surplus
of the said ;^5,i37,ooo of bonds shall remain unissued, or any
surplus of the proceeds of any of the said bonds which may
have been sold, shall remain in the hands of the party of the
second part, such surplus bonds shall be delivered to the party
of the first part, and such surplus of proceeds shall be paid
over to the party of the first part.
iFourteentl),—St is further understood that pursuant to the
authoritv conferred in the resolutions hereinbefore recited, the
✓ '
party of the first part shall have and has the right to issue as a
portion of the First Series of bonds hereby secured, bonds in
the form hereinbefore set forth, but at a less rate of interest than
six per cent per annum, with appropriate coupons to be there¬
unto annexed, and also when and as any of the first or any subse¬
quent series of bonds may be paid or taken up and canceled,
to issue, by way of substitution or in lieu thereof, from time to
25
time, under the security of this deed of trust or mortgage other
bonds, of the party of the first part coupon or otherwise.
Sterling or dollar bonds, in such series, to mature at such date
or dates, bearing such rate of interest not exceeding six per
cent, per annum, in such form or forms, upon and containing
such conditions as the board of directors of the party of the
first part may determine, provided the aggregate of all issues,
under this deed of trust or mortgage, at any one time out¬
standing, shall not, including the bonds set apart to take up
divisional securities, exceed the sum of ;^i 1,000,000 ; and the
certificate of the trustee, upon any bond, of any series, of the gen¬
eral tenor hereinbefore mentioned, or in any other form or forms
in which it may be from time to time determined by the board of
directors of the party of the first part, to issue bonds, pursuant to
the resolutions hereinbefore recited, under the security of the
deed of trust or mortgage, that such bond is one of those
issued under and secured by this deed of trust or mortgage,
shall be conclusive evidence that it is one of those issued in
accordance with the said resolutions, and is entitled to share
in the security of this deed of trust or mortgage, whatever the
rate of interest, the amount or form of such bond may be.
it Í0 further understood and agreed by and
between the parties to these presents, that in case the party of
the second part or its successors shall, upon default made, take
possession or make sale of the said premises, in pursuance of the
provisions hereinbefore contained, it or they shall be entitled
to receive or retain from the income and proceeds of the said
premises, a reasonable remuneration for its or their services
in the care and management of said premises.
Si^teentl).—the party of the second part doth hereby
accept the trust conferred upon it by these presents.
3n toitneso The party of the first part has caused
its corporate seal, attested by its secretary, to be hereunto
26
affixed, and those presents to be signed by its president ; and
the party of the second part, in evidence of its acceptance of
the trust hereby created, has caused these presents to be
signed by its president, and its corporate seal, attested by its
secretary, to be hereunto affixed the day and year first above
written.
Seal of
I the Norfolk and
Western Railroad
Company,
Attest :
GEORGE F. TYLER,
President.
George R. W. Armes,
Secretary.
/ Seal of
the Fidelity
Insurance, Trust
and Safe Deposit
Company,
Attest :
STEPHEN A. CALDWELL,
President.
R. Patterson,
Secretary.
Sealed and delivered in the
presence of
" upon" in
page,
The words " power " in seventeenth
line third page, and
thirteenth line twentieth
interlined, and first "or" in
twenty-first line eleventh page^
and the word " intent " in sev¬
enth line twenty-first page, writ¬
ten partly on erasures before ex*
ecution.
Jos. 1. Doran,
John W. Brock.
27
ötate of birginia, \ ^
۟b of Norfolk, l
I, L. B. Alien, notary public for the city of Norfolk,
do certify that George F. Tyler, president of the Norfolk
and Western Railroad Company, whose name is signed to
the foregoing deed of trust or mortgage bearing date on
the fourth day of May, in the year of our Lord 1881, has
acknowledged the same before me, in my city aforesaid,
and has further acknowledged and declared that he executed
the same as president of the Norfolk and Western Rail¬
road Company, and for and on behalf of said company as
its 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 George R.
W. Armes, the secretary of said company, all of which has
been done by him under and pursuant to the authority con¬
ferred on him by the stockholders and board of directors of
said Norfolk and Western Railroad Company.
And I do further certify that George R. W. Armes, the
secretary of the Norfolk and Western Railroad Company,
whose name is also signed to the deed of trust or mortgage,
bearing date the fourth day of May, A. D. 1881, as hereinbe¬
fore referred to, has also this day personally appeared before
me in my said city, and has acknowledged the same, and
has declared that by the direction of George F. Tyler, as
president of the Norfolk and Western Railroad Company, and
under and pursuant to the authority conferred by the stock¬
holders and board of directors of said company, he has duly
attested the said deed of trust or mortgage of said Norfolk
and Western Railroad Company, and has signed his name to
said attestation.
Given under my hand and official seal this fourth day of
May, A. D. 1881.
L. B. Allen,
|?Notiry?iw?c!°'] Notary Public.
28
State of birgittia,
Ob of Norfolk,
I, L. B. Allen, notary public for the city of Norfolk,
State aforesaid, do certify that Stephen A. Caldwell, presi¬
dent of the Fidelity Insurance, Trust and Safe Deposit Com¬
pany, whose name is signed to the foregoing deed of trust
or mortgage, bearing date on the fourth day of May, in the
year of our Lord iSSi, has acknowledged the same before
me, in my city aforesaid, and has further acknowledged and
declared that he executed the same as president of the Fi¬
delity Insurance, Trust and Safe Deposit Company, and for
and on behalf of said conrpany as its act and deed, having as
such president signed his name thereto and affixed the cor¬
porate seal of said company ; and that he has caused the
same to be duly attested by Robert Patterson, 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 'jÇhe Fidelity Insurance, Trust and Safe De¬
posit Company.
Given under my hand and official seal this fourth day of
May, A. D. iSSi.
r Seal of L. B. Allen,"]
L Notary Public. J
L. B. Allen,
Notary Public.
5556 042 154674