XTvust Inbenture
Securing
NORTHERN PACIFIC—GREAT NORTHERN,
C., B. 8c Q. COEEATERAE,
FOUR PER CENT. JOINT BONDS.
July ist, 1901.
Co G. BurgoynOj Walker and Centre StreetSi N.
made this first day of July, A.
D. 1901, by and between
Northern Pacific Eailway Company, a corporation of
the State of Wisconsin, hereinafter termed the " Northern
Pacific Company ; " and the Great Northern Eailway
Company, a corporation of the State of Minnesota, herein¬
after termed the Great Northern Company " (said Com¬
panies together being hereinafter termed the Eailway
Companies "), parties of the first part ; and
The Standard Trust Company of New York, a
corporation organized and existing under the laws of the
State of New York, hereinafter termed the " Trustee,"
party of the second part.
Whereas, the Northern Pacific Company operates a rail¬
road extending from St. Paul, in the State of Minnesota, and
also from a point on Lake Superior, in the State of Wisconsin,
to Puget Sound on the Pacific Coast, together with various
branch lines and extensions ; and
Whereas, the Great Northern Company operates a railroad
extending from St. Paul, in the State of Minnesota, and from
Duliith, in the State of Minnesota, to Puget Sound on the
Pacific Coast, together with various branch lines and exten¬
sions ; and
Whereas, the Chicago, Burlington & Quincy Eailroad Com-
pan}^ hereinafter termed the " Burlington Company," operates
a railroad extending from Chicago, Illinois, to St. Paul, in the
State of Minnesota, and from Chicago, Illinois, to Billings, in
the State of Montana, together with various other lines,
branches and extensions; and
Whereas, said railroad of the Northern Pacific Company
and said railroad of the Burlington Company are connected at
St. Paul, in the State of Minnesota, and also at Billings, in the
2
State of Montana, and can be operated together so as to con¬
stitute one continuous main line with branches ; and said rail¬
road of the Great Northern Company and said railroad of the
Burlington Company are connected at St. Paul, in the State of
Minnesota, and can be operated together as one continuous
main line with branches ; and
Whereas, the shares of the capital stock of the Burlington
Company now issued or to be issued under existing contracts
do not in the aggregate exceed 1,112,000 shares of the par
value of $100 each ; and .
Whereas, the Northern Pacific Company and the Great
Northern Company each has corporate power to purchase the
shares of the capital stock of the Burlington Company and
each has corporate power to issue its obligations in payment
for the shares so purchased ; and
Whereas, the Northern Pacific Company and the Great
Northern Company each desired to acquire an interest in the
capital stock of the Burlington Company, but it was found
impracticable to acquire a substantial amount of such stock
except by the purchase thereof jointly, and by the issue in
payment therefor of the joint bonds of the Northern Pacific
Company and of the Great Northerti Company, as hereinafter
provided; and, therefore, said companies agreed with each
other :
(a) That they would purchase all, or not less than
two-thirds, of the entire capital stock of the Burlington
Company, on terms agreed upon between them ; and that, in
payment for such stock, they would issue their joint bonds, at
the rate of one thousand dollars, par value, of such joint
bonds for each five hundred dollars, par value, of the stock
so purchased ;
(h) That all the stock so purchased should be assigned and
transferred to the Trustee under an indenture of the tenor of
3
these presents, as security for the payment of the principal and
interest of such joint bonds ;
That each of the Bailway Companies should pay, or
should cause to be paid, one-half of the entire principal and
one-half of the entire interest of such bonds; that each
should bear one-half of all other obligations imposed upon
said companies by the terms of such indenture ; and that if
< . .
either of said Eáilway Compànies should default in its obliga¬
tions to the other in respect of such botids, by reason of bank¬
ruptcy, insolvency or other cause disabling it from performing
the same, the purchased stock belonging to such Company
so in default thereafter should become and be the property
of the Company not in default, which thenceforth should be
liable in severalty upon all covenants in the said bonds con¬
tained ; and
(d) That the respective rights, interests and obligations of
the Railway Companies, as between each other, in respect of
all the shares of stock so acquired, and in respect of such joint
bonds, should be defined in and by an agreement between said
Railway Companies, subject in all respects to the prior lien and
obligation of such trust indenture ; and
Whereas, at a meeting of the board of directors of the
Northern Pacific Company held on the 21st day of Juno, 1901,
this indenture was submitted and read, and it was duly resolved
that the same be executed and acknowledged by the President,
or a Vice-President, and the Secretary, or an Assistant Secre¬
tary in behalf of said Company, and that the same be delivered
to The Standard Trust Company of New York, the trustee
therein named ; and
Whereas, at a meeting of the board of directors of the
Great Northern Company held on the 29th day of June,
1901, this indenture was submitted and read, and it was
duly resolved that the same be executed and acknowledged
by the President or a Vice-President and the Secretary or an
à
Assistant Secretary in behalf of said Company, and that the
same be delivered to The Standard Trüst Company of New
York, the trustee therein named ; and
Whereas, the bonds to be secured by this indenture
are to be coupon bonds of the denomination of one thousand
dollars each, numbered consecutively from 1 upwards, and
registered bonds of the denomination of one thousand dol¬
lars, of five thousand dollars, and also of any multiple of five
thousand dollars that the Railway Companies, from time to
time, may prescribe, every such bond to bear a distinctive
number or designation ; and all such bonds, from time to time,
are to be executed in the name and on behalf of each of the
Railway Companies and under its corporate seal by its Presi¬
dent or any Yice-President, and by its Secretary or any As¬
sistant Secretary, and are to be issued, certified and delivered
as in this indenture provided, and are to be substantially
of the following tenor, to wit :
[form of coupon bond.]
No $1,000.
United States of America.
NORTHERN PACIFIC—GREAT NORTHERN
Four Per Cent. Joint Bond.
C. B. & Q. Collateral.
The Northern Pacific Railway Company, a corporation of
the State of Wisconsin, hereinafter termed the Northern Pacific
Company, and the Great Northern Railway Company, a corpora¬
tion of the State of Minnesota, hereinafter termed the Great
Northern Company, for value received, jointly promise to pay
to bearer, or, if registered, to the registered holder of this
bond, on the first day of July, 1921, in the City of New York
or in the City of Boston, Mass., at the oflSce of J. P. Morgan &
Co., or of such other fiscal agent or agents as shall be
5
appointed by said Railway Companies, üí^e thousand dollars
gold coin of the United States of America of the present
standard of weight and fineness, and to pay interest thereon
from the first day of July, 1901, at the rate of four per cent, per
annum, such interest to be payable at such oflSce in New York
or in Boston in like gold coin semi-annually on the first day of
January and the first day of July in each year, but only upon
presentation and surrender of the annexed coupons therefor
as they severally mature.
The principal and interest of this bond are payable
without deduction for any tax or taxes which said Railway
Companies may be required to pay or to retain therefrom un¬
der any present or future law of the United States, or of any
State, county or municipality therein.
This bond is one of a duly authorized series of coupon
bonds and registered bonds issued and to be issued by said
Railway Companies jointly in payment of the purchase price
of certain shares of the capital stock of the Chicago, Burling¬
ton & Quincy Railroad Company, of which shares one-half
shall belong to the Northern Pacific Company and one-half
to the Great Northern Company ; all such shares having
been acquired under an agreement between the Northern
Pacific Company and the Great Northern Company, that if
either of said Railway Companies shall default in its obliga¬
tions to the other in respect of the bonds of this issue, by
reason of bankruptcy, insolvency or other cause, disabling it
from performing the same, the pledged shares belonging to
such Company so in default thereafter shall become and
be the property of the Company not in default, which thence¬
forth shall be liable in severalty upon all covenants herein
contained.
All such bonds have been issued, or are to be issued,
under and in pursuance of, and are to be secured rata¬
bly by and are subject to, an indenture dated July 1, 1901,
duly executed by the Northern Pacific Company
6
and by the Great Northern Company, jointly, to
The Standard Trust Company of New York, as
Trustee, under which indenture all such shares of
stock of the Chicago, Burlington & Quincy Eailroad Com¬
pany so purchased by said Railway Companies shali be de¬
posited with said Trustee; and hereby reference is made to
said indenture with the same effect as if herein fully set
forth.
The aggregate amount of bonds of this issue is limited, so
that never at any one time shall there be outstanding such
bonds for an aggregate principal sum in excess of $222,400^000,
nor in excess of twice the par value of all shares of the capital
stock of the Chicago, Burlington & Quincy Railroad Com¬
pany that shall have been assigned and transferred to the
Trustee under sai¿l indenture in exchange for bonds certified
thereunder.
This bond is subject to redemption, as stated in said inden¬
ture, on the first day of any January or July after
January 1, 1906, by payment of the principal of the bond|
together with a premium of five per cent, thereof and the inter¬
est then accrued.
As provided in said indenture, this bond may be registered
as to principal in the name of the owner on the books of the
Trustee at its office in the City of New York, or on the books
of an agent to be maintained in the City of Boston, Mass.,
such registration being noted by the registrar on the bond,
and thereafter no transfer shall be valid unless made on such
books and similarly noted on the bond ; but the bond may be
discharged from registration by similar transfer to bearer, and
from time to time it may be registered or transferred to bearer
in like manner. Such registration, however, shall not affect
the transferability of the coupons by delivery merely, and pay¬
ment to the bearer thereof shall discharge the Railway Com¬
panies in respect of the interest therein mentioned, whether or
not the bond shall have been registered.
7
This bond also, as provided in said indenture, may be ex¬
changed for a registered bond without coupons, bearing inter¬
est payable quarterly on each first day of January, April, July
and October.
Neither this bond, nor any coupon for interest thereon, shall
become or be valid until the bond shall have been authenti¬
cated by the certificate, endorsed hereon, duly signed by the
Trustee under said indenture.
In Witness Whereof, the Northern Pacific Railway Company
and the Great Northern Railway Company each has caused these
presents to be signed by its President or one of its Vice-Presi¬
dents, and its corporate seal to be hereunto aflSxed and to be
attested by its Secretary or one of its Assistant Secretaries,
and coupons for said interest, authenticated by the engraved
fac-simile signature of its Treasurer, to be attached hereto,
this first day of July, 1901.
Northern Pacific Railway Company,
[L. s.] By
Vice-President.
Attest :
Assistant Secretary.
Great Northern Railway Company,
[l. s.'J By
,
Vice-President.
Attest :
< .
Assistant Secretary.
8
[form of registered bond without coupons.]
No. s
United States of America.
NORTHERN PAOIEIO—GREAT NORTHERN
Registered Four Per Cent. Joint Bond.
C. B. <fe Q. Collateral.
The Northern Pacific Railway Company, a corporation of
the State of Wisconsin, hereinafter termed the Northern Pacific
Company, and the Great Northern Railway Company, a
corporation of the State of Minnesota, hereinafter termed the
Great Northern Company, for value received, jointly promise
to pay to or
registered assigns, on the first day of July, 1921, in the City
of New York, or in the City of Boston, Mass., at the office of
J. P. Morgan & Co., or of such other fiscal agent or agents as
shall be appointed by said Railway Companies,
dollars gold coin of the United States of
America of the present standard of weight and fineness, and
to pay interest thereon from the first day of January, April,
July or October next preceding the date hereof, at the rate of
four per cent, per annum, such interest to be payable at such
olBce in New York or in Boston in like gold coin quarterly on
each first day of January, April, July and October.
The principal and interest of this bond are payable without
deduction for any tax or taxes which said Railway Companies
may be required to pay or to retain therefrom under any
present or future law of the United Stafes, or of aity State,
county or municipality therein.
This bond is one of a duly authorized series of coupon
bonds and registered bonds issued and to be issued by said
Railway Companies jointly in payment of the purchase price
of certain shares of the capital stock of the Chicago, Burling¬
ton & Quincy Railroad Company, of which shares one-half
shall belong to the Northern Pacific Company, and one-half
9
to the Great Northern Company ; all such shares having
been acquired under an agreement between the Northern
Pacific Company and the Great Northern Company, that if
either of said Bailway Companies shall default in its obliga¬
tions to the other in respect of the bonds of this issue, by
reason of bankruptcy, insolvency or other cause, disabling it
from performing the same, the pledged shares belonging
to such Company so in default thereafter shall become and
be the property of the Company not in default, which thence¬
forth shall be liable in severalty upon all covenants herein
contained.
All such bonds have been issued, or are to be issued,
under and in pursuance of, and are to be secured rata¬
bly by and are subject to, an indenture dated July 1, 1901,
duly executed by the Northern Pacific Railway Company and
by the Great Northern Railway Company, jointly, to The
Standakd Trust Company of New York, as Trustee, under
which indenture all such shares of stock of the Chicago, Bur¬
lington & Quincy Railroad Company so purchased by said
Railway Companies shall be deposited with said Trustee ; and
hereby reference is made to said indenture with the same
effect as if herein fully set forth.
The aggregate amount of bonds of this issue is limited, so
that never at any one time shall there be outstanding such bonds
for an aggregate principal sum in excess of $222,400,000, nor
in excess of twice the par value of all shares of the capital
stock of the Chicago, Burlington & Quincy Railroad Company
that shall have been assigned and transferred to the Trustee
under said indenture in exchange for bonds certified there¬
under.
This bond is subject to redemption, as stated in said
indenture, on the first day of any January or July after
January 1, 1906, by payment of the principal of the bond,
together with a premium of five per cent, thereof and the
interest then accrued.
10
This bond is transferable only in the manner prescribed
in said indenture on the Trustee's books provided for that
purpose at its oflSce in the City of New York, or on the books of
an agent to be maintained in the City of Boston, Mass.,
upon surrender and cancellátion of this bond ; and thereupon
a new registered bond will be issued to the transferee in
exchange therefor on payment of the charge provided for in
said indenture. This bond also, in the manner prescribed
in said indenture, and upon payment of the charge therein
provided, is exchangeable for coupon bonds of the same aggre¬
gate principal sum.
This bond shall not become obligatory for any purpose
until it shall have been authenticated by the certificate, hereon
endorsed, of the Trustee under said indenture.
In Witness Whereof, the Northern Pacific Railway Company
and the Great Northern Railway Company each has caused
these presents to be signed by its President or one of its Vice-
Presidents, and its corporate seal to be hereunto affixed and to
be attested by its Secretary, or one of its Assistant Secretaries,
the,.
Northern Pacific Railway Company,
[L. e.] By
,
Vice-President.
Attest :
*- — ' — - — - — - ,
Assistant Secretary.
Great Northern Eailway Company,
[E. s.] By
Vice-President.
Attest :
,
Assistant Secretary.
11
And whereas, there are to be attached to said coupon
bonds at the time of the issue thereof coupons representing the
semi-annual installments of interest which shall become due
thereon, each of which coupons is to be substantially of the fol¬
lowing tenor, viz. :
[form of interest coupon.]
$20. No.._
On the first day of the Northern Pacific
Railway Company and the Great Northern Railway Company,
jointly promise to pay to bearer, in the City of New York,
or in the City of Boston, Mass., at the office of J. P. Morgan
& Co., or of such other fiscal agent or agents as said Railway
Companies may appoint, twenty dollars gold coin, without any
deduction for taxes, being six months' interest, then due on
their Four Per Cent. Joint Bond No , subject to the
terms of said bond and of the indenture therein mentioned.
Treasurer.
Treasurer.
And whereas, each of the coupons to be attached to such
coupon bonds is to be authenticated by the engraved fac-simile
signature of the present Treasurer or of any future Treasurer of
the Northern Pacific Company and of the present Treasurer or
of any future Treasurer of the Great Northern Company, and
each of said Companies may adopt and use for that purpose
the engraved fac-simile signature of any person who shall have
been its Treasurer, notwithstanding the fact that he may have
ceased to be such Treasurer at the time when such bonds shall
be actually certified and delivered, and such coupons shall be
attached to the bonds ; and
12
Whereas, on each of said coupon bonds and on eacb of
said registered bonds without coupons there is to be endorsed
a certificate of the Trustee under this indenture that it is one
of the bonds issued hereunder ; and no bond shall be secured
by this indenture or be obligatory for any purpose unless
such certificate shall have been, executed by such Trustee,
such certificate to be substantially of the following tenor, viz. :
I form of trustee's certificate.]
This bond is one of the series of bonds described in the
within-mentioned indenture executed by the Northern Pacific
Railway Company and the Great Northern Railwaj'' Company
to the undersigned as Trustee.
The Standard Trust Company of New York,
Trustee.
by
tfeevcfjcrvje^ tlxts wltixjcssjctlt :
That, in order to secure the payment of the principal and
interest of all such bonds at any time issued and outstanding
under this indenture, and the performance of all the covenants
and conditions herein contained, and in consideration of the
premises and of the purchase and acceptance of such bonds by
the holders thereof, and of the sum of one dollar to each of
them duly paid by the Trustee at the ensealing and delivery
of these presents, the receipt whereof is hereby acknowledged,
The Railway Companies, parties of the first part, have
assigned and transferred, and by these presents do assign and
transfer unto the Trustee, party of the second part, its succes¬
sors and assigns, one million and sixty-six thonsand
and six hundred (1,066,600) shares of the capital stock of
the Chicago, Burlington cfe Quincy Railroad Company, the cer-
ti^tes for which have been delivered to the Trustee, and all
13
additional shares of the capital stock of said Company in
exchange for which bonds hereby secured shall be certified
and delivered hereunder.
^0 Ixauje atXÄ t0 the said shares of capital stock,
and all additional property that hereafter shall become
I .
subject to this indenture unto the Trustee and its suc¬
cessors and assigns, in trust for the equal and proportionate
security of all present and future holders of bonds and
interest obligations issued, and to be issued, under and
A
secured by this indenture, and for the enforcement of thh
payment of said bonds and interest obligations when payable,
and the performance of and compliance with the covenants
and conditions of this indenture, without preference, priority
or distinction as to lien or otherwise of any one bond
over any other bond by reason of priority in the issue
or negotiation thereof ; so that each and every bond
issued and to be issued, as aforesaid, shall have the same
right, lien and privilege under this indenture and so that the
principal and interest of every such bond shall, subject to the
terms hereof, be equally and proportionately secured hereby as
if all had been made, executed, delivered and negotiated simul¬
taneously with the execution and delivery of this indenture, it
being intended that the lien and security of this trust deed
shall take effect from the day of the execution hereof without
regard to the day of actual issue, sale or disposition of said
bonds as though upon such day all of said bonds were actually
issued, sold and delivered to the purchasers for value |
f
íitxzhy it is jcotûimKntzâ atxÄ ätclKXzä that all
such bonds with the coupons for interest thereon are to be
issued, certified and delivered and that said stock is to be held
by the Trustee subject to the further covenants, conditions,
uses and trusts hereinafter set forth; and it is covenanted
between the parties hereto as follows, viz. :
14
AETICLE ONE.
Section 1. From time to time the bonds to be secured
hereby shall be executed by the Railway Companies and by
them shall be delivered for certification, to the Trustee ; and
thereupon as provided in this Article, and not otherwise the
Trustee shall certify and shall deliver the same. At the
option of the Railway Companies, from time to time, any of
such bonds may be executed, certified and delivered originally
either as coupon bonds or as registered bonds.
The amount of bonds hereby secured which may be ex¬
ecuted by the Railway Companies and which may be certified
by the Trustee is limited so that never at any time
shall there be outstanding bonds hereby secured for an aggre¬
gate principal sum exceeding $222,400,000, nor in excess of
twice the par value of all shares of the capital stock of the
Burlington Company that shall have been assigned and trans¬
ferred to the Trustee under this indenture in exchange for
bonds certified and delivered hereunder.
Before certifying or delivering any coupon bond hereby
secured the Trustee shall detach and shall cancel all coupons
thereof then matured ; and every registered bond shall be
dated on the dav of the actual certification thereof.
Only such of said bonds as shall bear thereon a certificate
substantially in the form hereinbefore recited, duly executed
by the Trustee, shall be secured by this indenture or shall be
entitled to any lien or benefit hereunder. Every such certificate
of the Trustee upon any bond executed by the Railway Com¬
panies shall be the conclusive and the only evidence that the
bond so certified was duly issued hereunder, and is entitled to
the benefit of the trust hereby created.
Sec. 2. Upon the execution of this indenture and upon
delivery to the Trustee of the certificates for said 1,066,600
shares of the capital stock of the Burlington Company, accom¬
panied by duly executed instruments of assignment and
15
transfer thereof, the Trustee, without any further action on
the part of the Railway Companies, shall certify and shall
deliver to the Metropolitan Trust Company of the City of
New York, or to its agent, the Old Colony Trust Company (of
Boston, Mass.), as may be ordered in writing by Francis W.
Hunnewell, Charles J. Paine and J. Malcolm Forbes, or any
two of them, bonds hereby secured for the aggregate principal
sum of $213^320,000.
Sec. 3. The remaining $9,080,000, par value, of bonds
authorized to be issued under and secured by this indenture
shall be reserved to be executed, certified and delivered as
follows and not otherwise :
Whenever, after delivery to the Trustee of the certificates
for said 1,066,600 shares of the capital stock of the Burlington
Company under section 2 of this Article, the Railway Companies
shall tender or shall cause to be tendered to the Trustee the
certificates, accompanied by duly executed instruments of assign¬
ment and transfer, for any of the remaining shares of the cap¬
ital stock of the Burlington Company issued and outstanding at
the date hereof, or for any shares of said Company which under
existing obligations it is to issue and deliver (the aggregate par
value of all such shares already issued and to be issued under
existing obligations being not more than $111,200,000) the
Trustee shall receive the same and in exchange therefor
shall certify and shall deliver, upon the order in writing
of the President or a Vice-President of the Northern Pacific
Company and of the President or a Vice-President of the Great
Northern Company, $1,000 par value of the bonds reserved
under this section for each $500 par value of such shares of
tbe Burlington Company so received by the Trustee under
this section. >
The Trustee may receive a certificate signed by the Presi¬
dent or a Vice-President of the Northern Pacific Company or
of the Great Northern Company as suflScient evidence that any
certificates for shares of the capital stock of the Burlington
16
Company tendered to the Trustee hereunder are such certificates
for shares of the capital stock of the Burlington Company in
exchange for which bonds may be certified and delivered by
the Trustee hereunder.
Seo. 4. Whenever any coupon bond or bonds, issued under
and secured by this indenture, together with all unmatured
coupons thereto belonging, shall be surrendered for exchange
for registered bonds without coupons, the Railway Companies
shall execute, and the Trustee shall certify, and in exchange
for such coupon bond or bonds shall deliver, a registered bond
or registered bonds, without coupons, for the like aggregate
principal sum. If such exchange shall be made more than three
months after the date of maturity of the last matured coupon of
such surrendered coupon bonds the Railway Companies at the
time of such exchange in adjustment of the interest on such
bonds shall pay a sum equal to one quarterly installment of
interest on such registered bond or bonds without coupons.
Whenever any registered bond without coupons issued
under and secured by this indenture shall be surrendered for
exchange for a coupon bond or bonds, the Railway Companies,
upon payment of the charges therefor, shall issue and the
Trustee shall certify and in exchange for such registered bond
shall deliver a coupon bond or coupon bonds for the
like aggregate principal sum, with the coupons maturing
on and after the first day of January or the first day of
July next after the date of such exchange ; but if such ex¬
change shall be made less than three months prior to any first
day of January or first day of July, the holder of such surren¬
dered registered bond at the time of such exchange, in adjust¬
ment of the interest on such bonds, shall pay to the Trustee to
the credit of the Railway Companies a sum equal to the quar¬
terly installment which shall have matured on such registered
bond in respect of the interest represented by the coupon next
maturing upon such coupon bond or bonds.
17
In every case of such exchange the Trustee forthwith shall
cancel the surrendered bond or bonds and coupons and shall
deliver the same to the Railway Companies.
Whenever any registered bond or bonds without coupons
shall be surrendered, transferred and canceled, the Railway
Companies upon request therefor shall issue to the transferee,
and the Trustee shall certify and shall deliver registered bonds,
or one registered bond, without coupons, for a like aggregate
principal sum.
Nevertheless, no coupon bond shall be exchangeable for a
registered bond without coupons after such coupon bond shall
have been drawn for redemption or after notice of redemption
thereof shall have been advertised as provided in Article
Four hereof ; and no registered bond without coupons shall
be transferable, or shall be exchangeable for a coupon bond
after such registered bond without coupons shall have been
drawn for redemption or after notice of redemption thereof
shall have been advertised as provided in said Article.
Except as hereinafter provided in section 6 of this Article,
the Railway Companies, for any exchange of coupon bonds for
registered bonds, and (2) for any transfer of registered bonds
without coupons, and (3) for any exchange of registered bonds
without coupons for coupon bonds, at their option, may require
the payment of a sum sufficient to reimburse them for any
stamp tax or governmental charge, and in addition thereto
such further sum as may be necessary to meet other expense
connected therewith, such further sum, however, not to exceed
one dollar for each new coupon bond or registered bond
without coupons issued upon such exchange or transfer.
Sec. 5. In case any coupon bond issued hereunder with the
coupons thereto appertaining, or any registered bond without
coupons, shall become mutilated or be destroyed, the Railway
Companies, in their discretion, may execute, and thereupon the
Trustee shall certify and deliver, a new bond of like tenor
aiid date (including coupons in case of a coupon bond) bearing
18
the same serial number, in exchange and substitution for, and
upon cancellation of, the mutilated coupon bond and its cou¬
pons, or the mutilated registered bond, or in lieu of and sub¬
stitution for the coupon bond and its coupons or the registered
bond so destroyed, upon receipt of evidence satisfactory to the
Railway Companies and to the Trustee of the destruction of
such coupon bond and its coupons, or of such registered
bond, and upon receipt also of indemnity satisfactory to the
Railway Companies and to the Trustee.
Sec. 6. Until the bonds to be issued under and secured
by this indenture can be engraved, the Railway Com¬
panies may execute, and upon their request the Trustee
shall certify and deliver, pursuant to sections 2 and 3
of this Article, in lieu of such engraved bonds, printed
registered bonds of any denomination, substantially of the
tenor of the registered bonds to be issued as hereinbe¬
fore provided. Upon surrender of such printed bonds for
exchange, the Railway Companies at their own expense and
without making any charge therefor, shall issue, and upon can¬
cellation of such surrendered bonds the Trustee shall certify
and deliver, in exchange therefor, engraved coupon bonds or
registered bonds without coupons of any denomination or
denominations hereinbefore provided for the same aggregate
principal sum as the printed bonds surrendered ; and until so
exchanged each of such printed bonds shall be entitled to the
same security as an engraved bond issued hereunder.
Sec. 7. Nothing in this Article contained, or in any othei-
Article of this indenture, or in the bonds issued hereunder,
expressed or implied, is intended, or shall be construed, to give
to any stockholder of the Burlington Company or to any other
person or corporation, except the parties hereto and the
holders of bonds issued under and secured by this indenture,
any legal or equitable right, remedy or claim under or in
respect of this indenture, or under any covenant, condition or
19
provision herein contáined ; all its covenants, conditions and
provisions being intended to be, and being, for the sole and
exclusive benefit of the parties hereto, and of the holders of
the bonds hereby secured.
ARTICLE TWO.
Section 1. The Railway Companies covenant that duly and
punctually they will pay the principal and interest of every
bond issued and secured hereunder at the dates and the place,
and in the manner mentioned in such bonds, or in the coupons
thereto belonging, according to the true intent and meaning
thereof, without deduction from either principal or interest for
any tax or taxes imposed by the United States, or any state or
county or municipality thereof, which the Railway Companies
may be required to pay or to retain therefrom, under or by
reason of any present or future law. The interest on the
coupon bonds shall be payable only upon presentation and
surrender of the several coupons for such interest as they
respectively mature, and when paid such coupons shall forth¬
with be canceled.
The interest on the registered bonds without coupons shall
be payable only to the registered holders thereof, and the Rail¬
way Companies shall cause cheques for such interest to be re¬
mitted by mail to all holders of registered bonds without cou¬
pons, who shall file suitable written orders therefor with the
fiscal agent of the Railway Companies in New York or in Bos¬
ton at whose office such interest is payable.
The principal and interest of such bonds shall be payable
in the City of New York or in the City of Boston, Mass., at
the office of J. P. Morgan & Co., or of such other fiscal agent
or agents as shall be appointed by the Railway Companies
for that purpose. At all times, until the payment of the
principal of the bonds hereby secured, the Railway Companies
will maintain a fiscal agency in the City of New York and in
20
the City of Boston where bonds and coupons may be pre¬
sented for payment and where notices or demands in respect
of said bonds and coupons may be served, and, from time to
time, the Eailway Companies will give written notice to the
Trustee of auy change of any such agency. In case the Rail¬
way Companies should fail to maintain such agency or should
fail to give such notice of any change thereof, presentation
and demand may be made and notices may be served at the
office of the Trustee in the City of New York.
Sec. 2. The Railway Companies hereby appoint the Trustee
, Í •
registrar in the City of New York, and at all times they will
maintain an agency in the City of Boston for the registration
and transfer of bonds issued hereunder. At each of such
places of registration the Railway Companies will cause to be
registered, subject to reasonable regulations, in books to be
kept for that purpose, any bonds without coupons, and, upon
presentation thereof for such purpose, any coupon bonds
issued hereunder ; and the Railway Companies by instrument
in writing from time to time may appoint a new registrar in
the City of New York or in the City of Boston in place of
any registrar previously appointed.
Upon presentation at the office of either bond registrar at
its office in the City of New York or in the City of Boston
of any such coupon bond registered at the same office, ac¬
companied by delivery of a written instrument of trans¬
fer executed by the registered holder, such bond shall
be transferred upon such bond register and such transfer
shall be noted by such registrar upon the bond. The regis¬
tered holder of any such registered coupon bond also shall
have the right to cause the same to be registered as payable to
bearer, in which case transferability by delivery shall be re¬
stored, and thereafter the principal of such bond when due
shall be payable to the person presenting the bond ; but any
21
such coupon bond registered as payable to bearer may be
registered again in the name of the holder with the same effect
as a first registration thereof. Successive registrations and
transfers as aforesaid may be made from time to time as de¬
sired ; and each registration of a coupon bond shall be noted
by the bond registrar on the bond.
Eegistration of any coupon bond, however, shall not re¬
strain the negotiability of any coupon thereto belonging, but
every such coupon shall continue to pass by delivery merely,
and shall remain payable to bearer.
Any registered bond or bonds without coupons may be
transferred upon such register by surrender of such bond or
bonds for cancellation accompanied by delivery of a written
instrument of transfer duly executed by the registered holder
of the bond or bonds ; and thereupon a new registered bond,
or new registered bonds, for an equivalent principal sum shall
be issued to the transferee or transferees as provided in section
4 of Article One hereof.
Sec. 3. The Eailway Companies covenant
(aJ that in case hereafter there shall be issued any
shares of the capital stock of the Burlington Company,
in addition to the shares that now are outstanding or
that may be issued in exchange for the convertible de¬
bentures of said Company now outstanding, or that may be
issued to the holders (other than the Burlington Company) of
the shares of other corporations whose franchises and property
f
have been purchased by the Burlington Company or that may
be issued to any other party or parties now entitled to demand
stock of the Burlington Company, then the Eailway Companies
will assign and transfer, or will cause to be assigned and trans¬
ferred, to the Trustee, by it to be held subject to the trusts
of this indenture, such part of such additional capital stock
as shall bear a like proportion to the part of the entire capital
stock of the Burlington Company previously assigned and
transferred to the Trustee hereunder ;
22
(})) that they will not by aflSrmative vote or by abstaining
from voting sanction or permit the issue of any bonds by the
Burlington Company, except for the refunding of its existing
obligations, or for the acquisition of additional properties, or
for betterments or improvements, or for other lawful purposes
of the Burlington Company ;
(c) that no proceeds of any bonds that may be issued by
the Burlington Company (except such proceeds to an amount
not exceeding any undivided surplus that shall have been ac¬
cumulated by the Burlington Company after July 1, 1901),
shall be used to pay any part of the bonds secured by this in¬
denture unless all the bonds hereby secured shall then be
paid ;
(d) that no part of the surplus of the Burlington Company
existing on July 1, 1901, in which surplus are included the
shares of other corporations now in the treasury of the Bur¬
lington Company whose franchises and property have been
purchased by the Burlington Company as also any shares of
said Burlington Company that might be issued in exchange
for such shares of such other corporations, shall be distributed
as a dividend among the stockholders unless all the bonds
secured by this indenture shall then be paid ;
(e) that they will cause all repairs, renewals and replace¬
ments, necessary to maintain the railroads, structures, locomo¬
tives, cars and other equipment, tools and other property of
the Burlington Company in their present good order and con¬
dition, to be made out of the earnings of said railroads and
other property, and will consent and do hereby consent that
the said railroads and other property and the books of account
of the Burlington Company may be from time to time
inspected personally by any member of the present
Executive and Finance Committee of the Burlington
Company with any necessary clerical assistance, and
such members, upon their request, shall be furnished with free
transportation over all the lines of the Burlington system ;
23
that the following provision in the bonds secured by
this indenture, to wit :
" all such shares having been acquired under an
agreement between the Northern Pacific Company and
the Great Northern Company, that if either of said
Railway Companies shall default in its obligations to
the other in respect of the bonds of this issue, by reason
of bankruptcy, insolvency, or other cause, disabling it
from performing the same, the pledged shares belong¬
ing to such Company so in default thereafter shall be¬
come and be the property of the Company not in default,
which thenceforth shall be liable in severalty upon all
covenants herein contained "
may be enforced against either or both of said Railway Com¬
panies by the Trustee in the interest and for the benefit of
bondholders by any such action and by any such legal pro¬
ceedings as may be deemed necessary and appropriate ;
(g) that neither of said Railw^ay Companies will additionally
encumber its existing lines of railway by any new mortgage
thereon, except by way of further security for bonds issued
under existing mortgages of said railways, or to secure bonds
issued to refund bonds secured by existing mortgage of said
railways, unless, by the terms of such new mortgage, it shall
be provided, that any balance that the mortgagor shall be
bound to pay on account of the bonds secured by this
indenture after the application of the stock pledged hereunder,
shall be included in the debt secured by said new mortgage ;
(h) that they will not, by affirmative vote or by abstain¬
ing from voting, sanction or permit the execution by the
Burlington Company of any lease of the railways in its system
unless such lease be made subject to termination by the
Burlington Company in case the shares of the capital stock of
the Burlington Company held by the Trustee hereunder shall
be sold because of any default by the Railway Companies
hereunder, or shall be retaken by the holders of the bonds
24
hereby secured in exchanp^e for their bonds pursuant to
section 5 of Article Five hereof ; and
(i) That they will not, by aíBrmative vote or by abstainiug
from voting, sanction or permit the sale by the Burlington
Company of the railways in its system or of any essential part
thereof, or of the securities representing the same, unless
provision be made that so much of the consideration for
such sale as is or may be receivable by the holders of the
shares of the capital stock of the Burlington Company
pledged hereunder, upon the rata distribution thereof
among all the stockholders of the Burlington Company, shall
be delivered to the Trustee hereunder by it to be held as
further security for the bonds hereby secured.
AETICLE THREE.
Section 1. The Trustee shall cause to be transferred
into its name as Trustee under this indenture all shares of
the capital stock of the Burlington Company the certificates
for which shall be delivered to the Trustee hereunder.
Sec. 2. Until and unless there shall be some default in the
payment upon demand of the interest or of some part of the
interest on any bond hereby secured and such default shall
have continued for a period of three months, or in the payment
of the principal or of some part of the principal of any bond
hereby secured, (1) the Trustee, from time to time upon the
written demand of the Railway Companies, authorized by
resolution of the Board of Directors of each of the Railway
Companies, shall execute and deliver its powers of attorney
appointing such person or persons as the Railway Companies
from time to time jointly shall so designate in writing as
attorney and proxy to vote at meetings of the stockholders
of the Burlington Company upon all said shares of
stock for the election > of directors and for all pur¬
poses not in violation of the provisions of section 3 of
Article Two hereof ; and (2) in case the Railway Companies
25
shall fair jointly so to designate in writing such person or persons
tlie Trustee by one of its officers or by an attorney or proxy
by it selected, shall vote upon all such stock at elections of di¬
rectors of the Burlington Company for the election of five per¬
sons to be nominated in writing by the Northern Pacific Com¬
pany, for the election of five persons to be nominated in writ-
ing by the Great Northern Company, and'^for the election of an,
eleventh person so to be nominated in writing by both of said
Railway Companies ; but if the Railway Companies shall not,
at least five days prior to the date of such election, jointly so
nominate a person to be such eleventh director, then the Trus¬
tee shall vote upon all such stock for the election of such per¬
son as eleventh director as shall be nominated in writing by thç
firm of J. P. Morgan & Co., who shall act as umpire for that
purpose. Upon all questions other than the election of directors,
if the Railway Companies shall have failed to designate an
attorney or proxy, the Trustee shall vote upon such stock iij
accordance with any written directions that máy so be given to
it by both of said Railway Companies, or, in the absence of
written direction so given by both of said Railway Companies,
then in accordance with any written directions that may be so
given by either one of the Railway Companies and by said firm
of J. P. Morgan & Co., who shall act as umpire for that purpose.
By written agreement, of which a copy (authenticated by resolu¬
tion of the Board of Directors of each of the Railway Companies)
shall be delivered to the Trustee, the Railway Companies may
appoint any other person or persons to act as umpire in place of
J. P. Morgan & Co. under the foregoing provisions ; and also may
make any provision in lieu of the foregoing provisions in respect
of the voting upon any of the stock pledged hereunder, until and
unless there shall be some default in the payment upon demand
of the interest, or of some part of the interest, on any bond
hereby secured, and such default shall have continued for a
period of three months, or in the payment of the principal, or
of some part of the principal, of any bond hereby secured—
26
notice oí any such substituted provision to be given to the
Trustee ; but in no event shall any vote be cast upon any of
said shares in violation of the provisions of section 3 of Article
Two hereof.
Sec. 3. Until and unless there shall be some default in
the payment upon demand of the interest or principal, or of
some part of the interest or principal of any bond hereby secured,
each of the Railway Companies and its assigns shall be entitled
to receive and to collect the dividends on one-half of the
^ _
stock held by the Trustee hereunder, and the Trustee, upon
demand of either of the Railway Companies, from time to time,
shall execute and deliver such assignments, orders or other
instruments as may be required to enable each of the Railway
Companies and its assigns to collect and receive one-half of all
dividends that may be declared or may become payable upon all
of such stock held by the Trustee hereunder, and the Trustee
shall pay over to each of the Railway Companies and its assigns
one-half of all sums that may be received or collected by the
Trustee as dividends upon such stock.
. V .
ARTICLE FOUR.
From time to time, upon previous advertisement of notice
of call, as hereinafter provided, the Railway Companies
shall have the right on the first day of any January ör July
after January, 1906, to redeem and to pay off the bonds
hereby secured àt 105 per cent, of their par value and the in¬
terest accrued to the date of redemption specified in such notice ;
but not less than $1,000,000, par value, of such bonds shall be
called for redemption at any one time, and no registered bonds
without coupons issued and outstandiiig under this indenture
shall be called for redemption until after all coupon bonds
then outstanding shall have been called for redemption. If at
any time the Railway Companies shall desire to redeem less
than all of the outstanding coupon bonds or less than all of
27
the outstanding registered bonds without coupons, they shall
request the Trustee to draw by lot bonds for a specified aggre¬
gate principal sum, and thereupon the Trustee shall draw by
lot the distinctive numbers of the coupon bonds or of the regis¬
tered bonds without coupons for such aggregate principal sum.
Before any such bonds shall become redeemable, the Railway
Companies in each case shall advertise at least once in each
calendar month for three successive calendar months in two
newspapers published in the City of New York and in two
newspapers published in the City of Boston a notice addressed
to the holders of bonds secured by this indenture, stating
that the Railway Companies have called for redemp¬
tion bonds specified in such notice, and that upon a date
therein designated (which date shall be on the first day
of January or July next after such notice shall have
been advertised for the period aforesaid) there will become
and be due and payable upon each of the bonds specified in
such notice the principal thereof with a premium of five per
cent, of such principal, and the accrued interest to the date of
redemption so designated. If less than all the outstanding
coupon bonds„ or less than all the outstanding registered bonds
without coupons shall be called for redemption, the distinctive
numbers of the bonds drawn by the Trustee for redemption
shall be specified in such notice, but if all the bonds of either
class shall be called, it shall be sufficient to indicate that fact in
the notice.
Upon such advertisement of such notice the bonds therein
specified shall become and be due and payable in the City of
New York, or in the City of Boston, Mass., on the date de¬
signated in such notice at the office of J. P. Morgan & Co.,
or of such other fiscal agent or agents as shall be appointed by
the Railway Companies, at par, with a premium of five
per cent, of their par value and the interest accrued from
the last matured interest installment. The sum payable for
principal and premium of each coupon bond shall be payable to
28
the bearer of such coupon bond unless it shall have been reg¬
istered, and if it shall be registered then to the registered
holder of such coupon bond, but in no case, except upon sur¬
render of such bond and of all coupons for interest thereon not
due at the date of redemption designated in such notice. All
interest installments upon coupon bonds which shall have ma¬
tured on or prior to the date of redemption designated in such
notice shall continue to be payable to the bearers severally and
respectively of the coupons for such installments. The sums
so due upon the registered bonds without coupons for principal,
premium and for such accrued interest from the maturity of
the last interest installment prior to such date of redemption
shall be paid to the registered holders of such bonds, but only
upon surrender thereof.
All bonds that shall be redeemed and paid hereunder shall
be canceled and no new bond shall be issued in substitution
therefor.
From and after the date of redemption designated in any
notice so advertised (unless the Eailway Companies shall make
default in paying the same upon demand as herein provided),
no further interest shall accrue upon any of the bonds so
called for redemption ; and anything in such bonds or in such
coupons or in this indenture to the contrary notwithstanding,
any coupons for interest maturing after such date shall become
and be null and void.
ARTICLE FIVE.
Section 1. Neither any coupon belonging to any bogd
hereby secured, nor any claim for interest on any registered
bond, which in any way, at or after maturity, shall have been
transferred or pledged separate and apart from the bond to
which it relates, shall, unless accompanied by such bond, be
entitled, in case of a default hereunder, to any benefit of, or
from, this indenture, except after the prior payment in full of
29
the principal of the bonds issued hereander, and of all coupons
and interest obligations, not so transferred or pledged.
Sec. 2. In case (1) default shall be made in the pay¬
ment upon demand of any interest on any bond secured by this
indenture, and such default shall continue for a period of three
months ; or, in case (2) default shall be made in the due
observance or performance of any other covenant or condition
herein required to be kept or performed by the Railway Com¬
panies, and any such last-mentioned default shall continue for a
period of six months after written notice thereof shall have
been given to the Railway Companies by the Trustee, then,
during the continuance of any such default, upon the written
request of the holders of a majority in amount of the bonds
hereby secured then outstanding, the Trustee, by notice in
writing delivered to the Railway Companies, shall declare the
principal of the bonds hereby secured and then outstanding to
be due and payable immediately, and upon such declaration the
same shall become and be immediately due and payable,
anything in this indenture or in said bonds contained to the
contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal of said
bonds shall have been so declared duo and payable, all arrears
of interest upon all such bonds, with interest at the rate of
four per cent, per annum on overdue installments of interest,
shall either be paid by the Railway Companies or be collected
out of the pledged stock, or be paid before any sale of
the pledged stock shall have been made, or if any default
in the observance or performance of any covenant or condition
of this indenture not relating to the payment of interest on any
bond shall be cured or satisfaction deemed by the Trustee to
be adequate shall be made therefor, then and in every
such case the holders of a majority in amount of the bonds
hereby secured then outstanding, by written notice . to
the,Railway Companies and to the Trustee, may waive such
30
default and its consequences ; but no such waiver shall extend
to or affect any subsequent default, or impair any right con¬
sequent thereon.
In case the Trustee shall havö proceeded to enforce any
right under this indenture, by foreclosure, or otherwise, and
such proceeding shall have been discontinued or abandoned
because of such waiver, or for any other reason, or shall have
been determined adversely to the Trustee, then and in every
such case, the Railway Companies and the Trustee shall be
restored to. their former position and rights hereunder in
respect of the shares of stock pledged hereunder, and all rights,
remedies and powers of the Trustee shall continue as though
no such proceeding had been taken.
Sec. 3. In case (1) default shall be made in the payment
upon demand of any interest on any bond hereby secured,
or in case (2) default shall be made in the due
«and punctual payment of the principal of any bond
hereby secured ; or in case (3) default shall be made in
the due observance or performance of any other covenant
or condition herein required to be kept or performed by
the Railway Companies and any such last-mentioned
default shall continue for a period of six months after written
notice thereof shall have been given to the Railwa}' Companies
by the Trustee—then and in every such case, during the con¬
tinuance of such default, the Trustee may revoke all assign¬
ments, orders or other instruments by it executed enabling the
Railway Companies to collect and to receive dividends on such
stock of the Burlington Company held hereunder, and the
Trustee for the benefit of the holders of the bonds hereby se¬
cured shall be entitled to receive and to collect all dividends
that shall become payable upon said stock.
All sums so received or collected by the Trustee as divi^
dends upon such stock, after deducting thérefrom all proper
charges, costs and expenses payable to the Trasteé by the Rail-
31
way Companies hereunder, shall by the Trustee be applied as
follows :
In ease the principal of the bonds hereby secured shall
not have become due,, to the payment of the interest in de¬
fault, in the order of the maturity of the installments of such
interest, with interest thereon at the rate of four per cent, per
annum ; such payments to be made ratably to ihe persons
entitled thereto, without discrimination or preference.
In case the principal of the bonds hereby secured shall
have become-due, by declaration or otherwise^ first to the pay¬
ment of the accrued interest (with interest on the ovetdue in¬
stallments thereof at the rate.of four per cent, per annum) in
the order of the maturity of the installments, and iiext to the
payment of the principal of all bonds hereby secured ; in
every instance such payment to be made ratably to the per¬
sons entitled to such payment without any discrimination or
preference.
These provisions, however, are not intended in; anywise to
modify the provisions of section 1 of this Article Five, but are
subject thereto.
Sec. 4. In case (1) default shall be made in the payment, upon
demand of any interest on any bond hereby secured, and such
default shall continue for a period of three months ; or in case
(2) default shall be made in the due and punctual payment of
the principal of any bond hereby secured ; or in case (3) default
shall be made in the due observance or performance of any
other covenant or condition herein required to be kept or per¬
formed by the Railway Companies and any such last-mentioned
default, shall continue for a period of six months after written
notice thereof shall have been given to the Railway Companies
by the Trustee—then and in every such case during the con¬
tinuance of such default the Trustee may vote upon all such
shares of stock and may revoke any powers of attorney or
proxies which it may have executed at the request of the
r 'i -- ' , .. K : > . ' Î ■
Railway Companies.
32
Sec. 5. In case (1) default shall be made in the payment
upon demand of any interest on any bond hereby secured,
and any such default shall continue for a period of
six months, or in case (2) default shall be made
in the due and punctual payment of the principal of
any bond hereby secured, or in case (3) default shall be made
in the due observance or performance of any other covenant
or condition herein required to be kept or performed by the
Railway Companies, and any such last-mentioned default
shall continue for a period of six months after written notice
thereof shall have been given to the Railway Companies by
the Trustee, then, and in each and every such case of default,
the Trustee, in its discretion, either
(a) may sell or cause to be sold to the highest and best
bidder in one lot and as an entirety all and singular the shares
of the capital stock of the Burlington Company then held by
the Trustee hereunder, which sale shall be made at public
auction at such place in the City of New York, and at such
date, and at such time, and upon such terms as the Trustee
may determine, and as shall be specified in a notice of such
sale, which shall be published in a newspaper in the City of
New York and also in a newspaper in the City of Boston, Mass.,
at least twice in each calendar week for four successive calen¬
dar weeks prior to the date of such sale ; or
(h) may proceed to protect and to enforce its rights and the
rights of the bondholders under this indenture by a suit or
suits in equity or at law, whether for the specific performance
of any covenant or agreement contained herein or in aid of
the execution of any power herein granted, or for the fore¬
closure of this indenture, or for the enforcement of any other
appropriate legal or equitable remedy as the Trustee, being
advised by counsel learned in the law shall deem most effectual
to protect and enforce any of its rights hereunder.
Nevertheless, if thereunto requested by the holders of three-
fourths in amount of the bonds hereby secured then outstaud-
33
ing, the Trustee, in lieu of selling such stock or of enforcing
any of its rights or remedies hereunder by reason of such de¬
fault, shall cause to be transferred to the respective holders of
such bonds, in exchange for such bonds, with all unmatured
coupons for interest thereon and upon surrender thereof
to the Trustee for cancellation, $500 par value of such stock
of the Burlington Companj'^ for each $1,000 par value of the
bonds so surrendered in exchange. Such written request exe¬
cuted during the continuance of any such default by the holders
of three-fourths in amount of the bonds hereby secured at the
time outstanding shall bind all the holders of bonds and cou¬
pons hereby secured, whether or not such holders shall have
executed any such written request, and after the delivery to the
Trustee of such written request, executed by the holders of
three-fourths in amount of the bonds hereby secured, no holder
of any such bond or of any coupon not then matured shall have
any right or claim by reason of such bond or coupon, except
to receive in exchange for and upon cancellation of each bond
with its unmatured coupons $500, par value, of said shares of
capital stock of the Burlington Company for each $1,000, par
value, of the bonds so surrendered. All the bonds and
coupons so surrendered shall by the Trustee be canceled and
be delivered to the Eailway Companies.
Sec. 6. Upon the written request of the holders of twenty-
five per cent, in amount of the bonds hereby secured, in case
of any such continuing default, it shall be the duty of the
Trustee, upon being indemnified, as hereinafter provided, to
take all steps needful for the protection and enforcemènt of its
rights and the rights of the holders of the bonds hereby
secured, and to exercise the powers herein conferred, or
to take appropriate judicial proceedings by action, suit or
otherwise, as the Trustee, being advised by counsel learned in
the law, shall deem most expedient in the interest of the
holders of the bonds hereby secured ; but, anything in this
34
indenture to the contrary notwithstanding, the holders of
seventy-fire per cent, in amount of the bonds hereby secured
and then outstanding, from time to time, shall have the right
to direct and control the action of the Trustee and the method
and place of conducting any and all proceedings for any sale
of the pledged stock, or for the foreclosure of this indenture,
or for the appointment of a receiver or of any other proceed¬
ings hereunder.
Seo. 7. From time to time the Trustee may adjourn any
sale to be made by it under the provisions of this indenture,
by announcement at the time and place appointed for such sale,
or for such adjourned sale or sales ; and without further notice
or publication, it may make such sale at the time and place to
which the same shall be so adjourned.
Seo. 8. Upon the completion of any such sale under this
indenture the Trustee shall transfer to the accepted purchaser
all such shares of the capital stock of the Burlington Company
and shall deliver to such purchaser the certificates therefor, and
the Trustee hereby is appointed the true and lawful attorney
irrevocable of the Railway Companies and of each of tliem in
their name and stead to make all necessary assignments and
transfers of the shares of capital stock thus sold, and may
substitute any one or more persons with like power, the Rail¬
way Companies hereby ratifying and confirming all that their
said attorneys or such substitute or substitutes shall lawfully
do by virtue hereof.
Any such sale made under or by virtue of this indenture,
whether under the power of sale hereby granted and conferred,
or under or by virtue of judicial proceedings, shall operate to
divest all right, title, interest, claim and demand whatsoever,
either at law or in equity, of the Railway Companies, and of
each of them, of, in and to the shares of capital stock sold, and
shall be a perpetual bar, both at law and in equity, against the
Railway Companies and each of them, and their successors and
35
aligns, and against any and all persons claiming or to claim
tlie shares of the capital stock sold, or any part thereof, from,
through or under the Eailway Companies or either of them, or
their successors or assigns.
Sec. 9. The receipt of the Trustee shall be a sufficient dis¬
charge to any purchaser of the property or any part thereof,
sold as aforesaid, for the purchase money ; and no such pur¬
chaser or his representatives, grantees or assigns, after paying
such purchase money and receiving such receipt shall be
bound to see to the application of such purchase money upon
or for any trust or purpose of this indenture, or in any manner
whatsoever be answerable for any loss, misapplication or non-
application of any such purchase money or any part thereof,
or be bound to inquire as to the authorization, necessity, ex¬
pediency or regularity of any such sale.
Sec. 10. In case of such sale, whether made under the
power of sale hereby granted or pursuant to judicial proceed¬
ings, the whole of the principal sums of the bonds hereby
Secured, if not previously due, shall at once become due and
payable, anything in said bonds or in this indenture to the
contrary notwithstanding.
Sec. 11. The purchase money, proceeds or avails of any
such sale, whether under the power of sale hereby granted or
pursuant to judicial proceedings, together with any other sums
which then may be held by the Trustee under any of the pro¬
visions of this indenture as part of the trust estate or the pro¬
ceeds thereof, shall be applied as follows :
First To the payment of the costs and exi>enses of
such sale, including a reasonable compensation to the
Trustee, its agents, attorneys and counsel, and of all ex¬
penses, liabilities and advances made or incurred by the
36
Trustee hereunder and of all charges upon said shares
of stock superior to the lien of these presents.
Second, To the payment of the whole amount then
owing or unpaid upon the bonds hereby secured for
principal and interest, with interest at the rate of
four per cent, per annum on the overdue install¬
ments of interest ; and in case such proceeds shall be in-
suflSoient to pay in full the whole amount so due and
unpaid upon the said bonds, then ratably tp the pay¬
ment of such principal and interest, without prefer¬
ence or priority of principal over interest, or of interest
over principal, or of any installment of interest over
any other installment of interest, subject, however, to
the provisions of section 1 of this Article ;
Third, One-half of any surplus remaining shall be
paid over to each of the Railway Companies, its suc¬
cessors or assigns, or to whosoever maybe lawfully en¬
titled to receive the same.
Sec. 12. Upon any such sale by the Trustee or pursuant to
judicial proceedings, any purchaser, for or in settlement or
payment of the purchase price of the property purchased, shall
be entitled to use and apply any bonds, and any matured and
unpaid coupons hereby secured, by presenting such bonds and
coupons in order that there may be credited thereon the
sums applicable to the paymeiit thereof out of the net pro¬
ceeds of such sale after making any deductions which may be
made from the proceeds of sale for costs, expenses, compensa¬
tions and other charges ; and such purchaser thereupon shall
be credited, on account of such purchase price payable by him,
with the sums applicable out of such net proceeds to the pay¬
ment of, and credited on, the bonds and coupons so presented ;
and, at any such sale, any bondholders may bid for, and pur¬
chase, such property, and may make payment therefor as
iaforesaid, and, upon compliance with the terms of sale, may
37
hold, retain and dispose of sueh property Without further
accountability.
SilC. 13. No holder of any bond or coupon hereby secured
shall have any right to institute àny suit, action or proceeding
in equity or at law for the foreclosure of this indenture, or for
the execution of any trust thereof, or for the appointment of a
receiver, or for any other remedy hereunder, unless the holders
of twenty-five per cent, in amount of the bonds hereby secured,
then outstanding, shall have made written request upon the
Trustee to take action in respect of the matter complained of
and shall have afforded to it a reasonable opportunity, either
to proceed to exercise the powers hereinbefore granted,
or to institute such action, suit or proceeding in its own
name; or unless, also, they shall have 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 de¬
clared, in every such case, at the option of the Trustee, to bo
conditions precedent to the execution of the powers and trusts
of this indenture and to any action or cause of action, for
foreclosure or for the appointment of a receiver, or for any
other remedy hereunder ; it being understood and intended
that no one or more holders of bonds and coupons shall have
any right in any manner whatever to affect, disturb or preju¬
dice the lien of this indenture by his or their action, or to
enforce any right hereunder, except in the manner herein pro^
vided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided,
and for the equal benefit of all holders of such outstanding
bonds and coupons.
Sec. 14. No delay or omission of the Trustee, or of any
holder of bonds hereby secured, to exercise any right or
power accruing upon any default, continuing as aforesaid, shall
38
impair any such right or power, or shall be construed to be a
waiver of any such default, or of any subsequent default, oran
acquiescence therein ; and every power and remedy given by
this Article to the Trustee, or to the bondholders, may be* ex¬
ercised from time to time, and as often as may be deemed ex¬
pedient, by the Trustee or by the bondholders.
ARTICLE SIX.
No recourse under or upon any obligation, covenant or
agreement contained in this indenture, or in any bond or
coupon hereby secured, or because of the creation of any in¬
debtedness herebj^ secured, shall be had against any stockholder,
officer or director of either of the Railway Companies, or of any
successor corporation, either directly or through either of the
Railway Companies, by the enforcement of any assessment or
by any legal or equitable proceeding by virtue of any statute
or otherwise ; it being expressly agreed and understood that
this indenture, and the obligations hereby secured, are solely
corporate obligations, and that no personal liability whatever
shall attach to, or be incurred by, the stockholders, officers or
directors of either of the Railway Companies because of the
incurring of the indebtedness hereby authorized, or under or by
reason of any of the obligations, covenants or agreements con¬
tained in this indenture, or in any of the bonds or coupons
hereby secured, or implied therefrom ; and that any and all
personal liability of every name and nature, and any and all
rights a-nd claims against, every such stockholder, officer or
director, whether arising at common law or in equity, or
created by statute or constitution, are hereby expressly re^
leased and waived as a condition of, and as part of the con¬
sideration for, the execution of this indenture and the issue of
the bonds and interest obligations secured hereby.
39
ARTICLE SEVEN!
Section 1. Any request or other instrument, required by
this indenture to be signed and executed by bondholders, may
be in any number of concurrent instruments of similar tenor,
and may be signed or executed by such bondholders in person
or by agent appointed in writing. Proof of the execution of
any such request or other instrument, or of a writing appoint¬
ing any such agent, and of the holding by any person of coupon
bonds transferable by delivery, shall be suiScient for any pur¬
pose of this indenture, and shall be conclusive in favor of the
Trustee with regard to due action taken by it under such re¬
quest or other instrument, if made in the following manner :
The fact and date of the execution by any person of any
such request, or other instmment, or writing, may be proved
by an affidavit of a witness to such execution, or by the
certificate of any notary public, or other office^authorized to
take acknowledgments of deeds to be recorded in New York,
that the person, signing such request or other instrument,
acknowledged to him the execution thereof.
The amount of coupon bonds transferable by delivery, held
by any person executing any such request or other instrument
as a bondholder, and the amounts and issue numbers of the
bonds held by such person, and the date of his holding the
same, may be proved by a certificate executed by any trust
company, bank, bankers or other depositary (wherever situ¬
ated), if such certificate shall be deemed by the Trustee
to be satisfactory, showing therein that at the date therein men¬
tioned such person had on deposit with such depositary thè
bonds described in such certificate. The ownership of regis¬
tered coupon bonds or of registered bonds without coupöhlä
shall be proved by the registers of such bonds.
Seo. 2. The Railway Companies and the Trustee may deem
and treat the bearer of any coupon bond hereby secured,
40
which shall not at the time be registered as hereinbefore
authorized, and the bearer of any coupon for interest on any
such bond, whether such bond shall be registered or not, as
the absolute owner of such bond or coupon as the case may
be, for the purpose of receiving payment thereof and for all
other purposes ; and neither the Railway Companies nor the
Trustee shall be affected by any notice to the contrary.
The Railway Companies and the Trustee may deem and
treat the person in whose name any registered bond without
coupons issued hereunder shall be registered upon the books
of the Railway Companies, as hereinbefore provided, as the ab¬
solute owner of such bond for the purpose of receiving payment
of, or on account of, the principal and interest of such bond,
and for all other purposes, and may deem and treat the person
in whose name any coupon bond shall be so registered as the
absolute owner thereof for the purpose of receiving payment
of, or on account of, the principal thereof, and for all other
purposes except to receive payment of interest represented by
outstanding coupons ; and all such payments so made to any
such registered holder for the time being, or upon his order,
shall be valid and effectual to satisfy and discharge the lia¬
bility upon such bond to the extent of the sum or sums so paid.
ARTICLE EIGHT.
Section 1. The Trustee shall not be answerable for the
default or the misconduct of any agent or attorney appointed
in pursuance hereof, if such agent or attorney shall have been
selected with reasonable care ; nor shall the Trustee be
responsible for anything whatever in connection with this
trtwt, except willful misconduct. or gross negligence. The
Trustee shall not be under any obligation to take any action
towards the execution or enforcement of the trusts hereby
created, which, in the opinion of the Trustee, shall be likely to
involve expense or liability, unless one or more of the holders
41
of the bonds hereby secured shall, u-s often required by the
Trustee, furnish reaspnable indemnity against such expense or
liability ; nor shall the Trustee be required to take notice of
any default hereunder, unless notified in writing of such
default by the holders of at least five per cent, in amount of
the bonds hereby secured then outstanding, or to take any
action in respect of any default unless requested to take action
in respect thereof by a writing signed by the holders of not
less than twenty-five per cent, in amount of the bonds hereby
secured, then outstanding, and tendered reasonable indemnity
as aforesaid, anything herein contained to the contrary not¬
withstanding ; but the foregoing provisions of this section are
intended only for the protection of the Trustee, and shall not
be construed to affect any discretion or power by any pro¬
vision of this indenture given to the Trustee to determine
whether or not it shall take action in respect of any default,
without such notice or request from bondholders, or to affect
any other discretion or power given to the Trustee.
The Trustee shall be reimbursed for, and be indemnified
against, any liability or damages which may be sustained by
it in the premises, and shall have a lien secured hereby upon
the property covered by this indenture, for its compensation
and expenses, and also for any such liability or damages.
The Trustee shall not be responsible in any manner what¬
soever for the validity hereof, or for the security afforded by
the property covered hereby, or for the recitals herein or in
said bonds contained ; nor shall the Trustee be accountable
for the use of any bonds certified and delivered by the
Trustee hereunder or for the application of the proceeds of
such bonds.
The Trustee shall be entitled to reasonable compensation
for all services rendered by it in the execution of the trusts
hereby created, and the Bail way Companies agree to pay such
compensation as well as all expenses necessarily incurred or
disbursed by the Trustee hereunder.
42
Sec. 2. The Trustee may resign, and be discharged from
the trusts created by this indenture by giving to the Railway
Companies and to the bondholders, notice by publication of
such resignation, specifying a date when such resignation
shall take effect, which notice shall be published at least once
on a day not less than thirty days nor more than sixty days
prior to the date so specified, in a newspaper at .that time
published in New York, N. Y., and in a newspaper published
in Boston, Mass. Such resignation shall take effect on the
day specified in such notice, unless previously a successor
trustee shall be appointed as hereinafter provided, in which
event such resignation shall take effect immediately upon the
appointment of such successor trustee.
Any trustee hereunder may be removed at any time by
an instrument in writing filed with the Trustee and executed
by the holders of two-thirds in amount of the bonds hereby
secured and then outstanding.
Sec. 3. In case at any time the Trustee shall resign or
shall be removed or otherwise shall become incapable of act¬
ing, a successor may be appointed by the holders of a
majority in amount of the bonds hereby secured then out¬
standing, by an instrument or concurrent instruments signed
by such bondholders or their attorneys-in-fact duly author¬
ized ; but until a new trustee shall be appointed by the bond¬
holders as herein authorized, the Railway Companies, by an
instrument executed by order of their respective boards of
directors, may appoint a trustee to fill such vacancy ; 'provided^
howeveVy that every such^trustee shall always be a trust com¬
pany having a capital and surplus aggregating at least $2,000,-
000, if there be such a trust company willing and able to ac¬
cept the trust upon reasonable or customary terms. After any
such appointment by the Railway Companies, they shall cause
notice of such appointment to be published once in each of
four successive weeks in a newspaper published in New York,
43
N. Y», and in a newspaper published in Boston, Mass.; but
any new trustee so appointed by the Railway Companies shall
immediately and without further act be superseded by a trus¬
tee appointed in the manner above provided by the holders
of a majority in amount of the bonds hereby secured.
Any successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Railway Companies an instru¬
ment accepting such appointment hereunder, and thereupon such
successor trustee, without any f|irther act, deed or conveyance,
shall become vested with the title to the pledged shares of the
capital stock of the Burlington Company, and with all the rights,
powers, trusts, duties and obligations of its predecessor in the
trust hereunder with like effect as if originally named as trustee
herein ; and the trustee ceasing to act shall assign and trans¬
fer to the successor trustee all said pledged shares of th|
capital stock of the Burlington Company and shall deliver to
such successor trustee the certificates therefor. Upon request
of such successor trustee the Railway Companies shall execute
and deliver such instruments of assignment and further as¬
surance that may reasonably be required for more fully and
certainly vesting and confirming to such successor trustee all
the right, title and interest of the Trustee in and to such
shares and such rights, powers, trusts, duties and obligations.
ARTICLE NINE.
If, when the bonds hereby secured shall have become due
and payable, the Railway Companies shall well and truly pay,
or cause to be paid, the whole amount of the principal moneys
and interest due upon all of the bonds and coupons for inter¬
est thereon hereby secured, then outstanding, or shall provide
for such payment by depositing with the Trustee hereunder,
for the payment of such bonds and coupons, the entire amount
due thereon for principal and interest, and also shall pay, or
cause to be paid, all other sums payable hereunder by thè
44
KaiÍwa»y Companies, and shall well and truly keep and per¬
form all the things herein requi red to be kept and performed
by them aecording to the true intent and meaning of this inden¬
ture, then and in that case all said shares of stock and all
property then held hereunder shall revert to the Eailway Com¬
panies and the estate, rights, title and interest of the Trustee
shall thereupon eease, determine and become void, and the-
Trustee in such case shall transfer and deliver to each of the
Eailway Companies, its assigns or nominees, at its or their cost
and expense one-half of all said shares of stock and other
property.
AETICLE TEN.
Any written demand, request, notice, designation, direction
or nomination to be made by the Eailway Companies or by
either one of them, under any of the provisions hereof, shall
be deemed sufficiently made and executed, if signed by the
President, or by a Vice-President, of the Eailway Companies,
or of the Eailway Company, in whose behalf the same shall
purport to be made. The Trustee may receive a certificate
signed by the Secretary, or by an Assistant Secretary, of either
Eailway Company as sufficient evidence of the passage of any
resolution by the Board of Directors, or by the Executive
Committee, of such Eailway Company.
The terms Northern Pacific Company," " Great Northern
Company " and " Eailway Companies," wherever used in this
indenture, shall be held to include such company or companies
and its or their respective successors and assigns ; and all the
covenants hereof binding upon or for the benefit of the Eail¬
way Companies shall bind and shall enure to the benefit of
their respective successors and assigns. The term " the firm
of J. P. Morgan à Co.," when herein used, shall include and
mean not only said firm as now constituted, but also any suc¬
cessor firm however constituted.
45
Subject in all respects to the prior and paramount
lien of this indenture and to all rights and provisions
thereof for the benefit of the holders of the bonds hereby
secured, each Bailway Company may assign and transfer
its interest in said pledged stock, including its rights under
sections 2 and 3 of Article Three hereof, to collect dividends
and to vote upon said pledged shares, and the Bailway Com¬
panies from time to time, by agreements between themselves,
may adjust and readjust or modify their respective rights and
interests in respect of such pledged shares.
The term Trustee," when herein used, shall be held and
construed to mean the trustee for the time being, whether origi¬
nal or successor ; and the words " Trustee," " bond," bond¬
holder" and " holder" shall include the plural as well as the
singular number.
In witness whereof, on the day and year first above writ¬
ten, the Northern Pacific Company, the Great Northern Com¬
pany and the Trustee, each respectively has caused this in¬
denture to be signed by its President or by one of its
Vice-Presidents, and its corporate seal to be hereunto affixed,
and the same to be attested by the signature of its Secretary
or one of its Assistant Secretaries.
Northern Pacific Bailway Company,
by
President.
Attest :
Secretary.
46
Great Northern Railway Company,
by
President.
Attest :
Secretary.
The Standard Trust Company of New York,
Trustee,
by
President.
Attest :
Secretary.
47
oï^ New York, )
> ss. :
City and County of New York, S
Be it remembered that on this third day of July, A. D.
1901, before me, the subscriber, personally came Daniel
S. Lament, the Yice-President, and George H. Earl, the
Secretary of the Northern Pacific Eailway Company, each
of whom is to me well known, who, being by me severally duly
sworn, each of them for himself did depose and say that the
said Daniel S. Lament resides in the City of New York, in
the State of New York, and is Vice-President of the Northern
Pacific Railway Company, one of the corporations described
in and which executed the foregoing instrument, and that the
said George H. Earl resides in Jersey City, in the State of
New Jersey, and is Secretary of said corporation ; that the
seal affixed to the foregoing instrument as the seal of said
corporation is the corporate seal thereof, and that it was
affixed by authority of the Board of Directors of said
corporation ; that the said Daniel S. Lament signed his name
thereto as Vice-President and the said George H, Earl signed
his name thereto as Secretary by like authority ; and they
severally acknowledged to me that the same was so done as
the free and voluntary act and deed of said corporation.
In witness whereof, I have hereunto set bv hand and
notarial seal this third day of July, 1901.
Notary Public,
County of New York,
N. T
48
State of New Yoek, )
> sr.:
City and County of New York, )
Be it remembered that on this third day of July, A. D.
1901, before me, the subscriber, personally came William
P. Clough, the Vice-President, and Edward T. Nichols, the
Secretary, of the Great Northern Railway jCompany, each of
whom is to me well known, who, being by me severally duly
sworn, each of them for himself did depose and say that the
said William P. Clough resides in the City of St. Paul, in the
State of Minnesota, and is Vice-President of the Great
Northern Railway Company, one of the corporations described
in and which executed the foregoing instrument, and that the
said Edward T. Nichols resides in Morristpwn, New Jersey,
and is Secretary of said Corporation ; that the seal aflSxed
to the foregoing instrument as the seal of said corporation
is the corporate seal thereof, and that it was affixed by
authority of the Board of Directors of said corporation ;
that the said William P. Clough signed his name thereto as
Vice-President and the said Edward T. Nichols signed his
name thereto as Secretary by like authority ; and they
severally acknowledged to ^me that the same was so done as
the free and voluntary act and deed of said corporation.
In witness whereof, 1 have hereunto set my hand and
notarial seal this third day of July, 1901.
Notary Public,
County of New York,
K Y.
49
State of New York,
City and County of New York,
ss. :
Be it remembered tliat on this day of July,
A. D. 190L before me, tbe subscriber, personally came
tiC. ^ ^1^0 \j^c^ ^ President, and
' Secretary, of
The Standard Trust Company of New York, each of whom
is to me well known, who, being by me severally duly sworn,
each of them for hir^elf did depose and say that the said
cC^—^ resides in the City of
, in the State of , and is t/Cu -
President of The Standard Trust Company of New York, one
of the corporations described in and which executed the fore¬
going instrument, and that the said ^ C*,
resides in the City of , and is Secretary
of said Corporation ; that the seal affixed to the foregoing
instrument as the seal of said corporation is the corporate seal
thereof, and that it was affixed by authority of the Board of^
Directors of said corporation ; that the said
signed his name as ^C<-^ - President, and
the said signed his name thereto
as Secretary, by like authorityj and they severally
acknowledged to me that the same was so done as the free and
voluntary act and deed of said corporation.
In witness whereof, I have hereunto set my hand and
notarial seal this day of July, 1901.
Notarv Public,
County of New York,
N. T.
[17970]
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