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railroad between the points between which it now exists, with its existing branches and leased roads suitably equipped and provided with depots, stations, shops, and other structures, of at least equal value with those now existing thereon, and in as good order and condition as the same now are, together with all permanent improvements thereon, and with rolling stock, machinery, tools, furniture, appliances, telegraph apparatus and equipment of at least equal value with that hereby demised, according to the appraisal thereof, less the sum of three hundred thousand dollars, as provided in this Article. The lessee shall not use the railroads leased to and controlled by it under this lease, so as to impair their earning capacity to the lessor whenever this lease shall be terminated, and shall not, without the consent of the lessor, construct lines of railroad competing with any part thereof; and all branches and extensions of road leased to or controlled by the lessee under this lease, which shall be built by the lessee during the term thereof, shall be conveyed to the lessor at the expiration or earlier termination of this lease upon its paying to the lessee the actual cost of the construction thereof without interest.
IX. The lessor shall maintain its existence and organization as a corporation, and to that end shall comply with all the requisites and forms of law; shall do all acts and things, and execute all legal instruments necessary and proper to put and secure the lessee in full enjoyment of all the property, rights, franchises, and interests herein demised, and to carry into effect the true intent and meaning of this lease. It shall from time to time whenever requested by the lessee take real estate for the convenient operation of the railroads herein demised, the lessee, however, advancing all damages and expenses
therefor ; and if real estate so taken is surrendered to the lessor at the termination of this lease, the lessor shall account to the lessee for the cost of the same without interest.
The lessee will indemnify and protect the lessor against all claims which may be made against it by stockholders who may dissent from this lease, and it will pay the claims of any such dissenting stockholders, and the expenses of the proceedings to ascertain the amount thereof; and any stock, interest, or property right of a dissenting stockholder of the lessor, which may become its property under such proceedings, shall, upon such payment by the lessee, be transferred to it by the lessor, to be held and disposed of by the lessee for its use and benefit.
Further to secure the lessee in the beneficial enjoyment of the property, rights, franchises, and privileges herein demised and specified, the lessor constitutes the lessee its attorney irrevocable with full right and power, at the lessee's expense, to use the name of the lessor in all legal proceedings and in all cases needful for obtaining, holding, and enjoying the premises herein demised and specified, and for all purposes consistent with the true intent of this instrument. And the lessor also hereby makes, constitutes, and appoints the lessee its true, sufficient, and lawful attorney from time to time to bargain and sell, with the assent of the directors of the lessor, lands and structures of the lessor, on soch terms as to the lessee shall seem meet, and hereby authorizes the lessee in the name of the lessor to make, execute, acknowledge, and deliver good and sufficient deeds and conveyances of all the right, title, and interest of the lessor, so bargained and sold, in and to the same, the lessor agree ing, whenever thereto requested by the lessee upon reasonable notice, to affix its corporate seal to such deeds and conveyances. The lessee covenants and agrees that other lands and structures of equal value and equally convenient for the use of the lessor shall be conveyed to the lessor in lieu of any lands and structures so sold and conveyed with the assent of the directors of the lessor, the property so acquired to become a part of the demised premises, or to account to the lessor for the proceeds of any land and structures so sold and conveyed in case it shall be impracticable to convey an equivalent in land and structures. The lessee shall furnish the directors and officers of the lessor and the lessor's treasurer with sufficient and suitable accommodations during the term of the lease at the station of the demised railroad in Concord, New Hampshire, or in any station which may be erected in place thereof, free of charge, and suitable vault and safe room shall be furnished the treasurer in such station.
XI. That the property herein demised and to be accounted for at the expiration or earlier termination of this lease may be accurately determined there shall be made as of the day when this lease takes effect, a full and particular inventory, description and appraisal of all estate and property, real and personal, belonging to the lessor and coming into the possession of the lessee by virtue of this lease, and to this from time to time shall be added such other estate and property as shall come into the possession of the lessee under the terms of this lease. Such inventory, description, and appraisal and the additions thereto from time to time shall be made by two competent persons, one selected by each party ; in case of their disagreement they shall refer the matter in difference to some third person, whose decision shall be final.
Such inventory, description, and appraisal shall be made in duplicate and an original furnished to each party, and shall be evidence of the nature, value, and condition of the property demised at the inception of this lease, or at the time of the additions thereto, in all cases in which any question of such nature, condition, or value may arise.
This lease is upon the condition that, if the lessee shall at any time fail to make to the lessor, as part of the rent herein reserved, the payments herein stipulated to be made to it to enable it to pay the interest on its indebtedness, or shall fail for thirty days to make any quarterly payments of rental as stipulated in Article 1, clause 3, hereof, or shall assign this lease or underlet or part with the possession of the demised property except as herein provided, then and in such case the lessor may at once enter upon the demised premises and upon any part thereof, as for the whole, and expel the lessee and determine the estate hereby granted, and shall thereupon become seized and possessed of the demised premises, and of all premises then in possession of the lessee or lessor under this indenture, and of every part thereof in its original right, and as if this lease had never been made ; and upon the further condition, that if the lessee shall fail to perform any other of the covenants and agreements in this lease contained, and such failure shall continue for six months after written notice of such failure from the directors of the lessor, the lessor shall have the like right to enter and expel the lessee and revest in itself its former estate in the demised premises and all premises then in possession of the lessee or the lessor under this indenture and every part thereof; provided, however, that such entry by the lessor for breach of condition shall in no wise prejudice or impair any remedies to which it might otherwise be entitled for arrears of rent or preceding breach of covenants or any other rights secured by this lease in case of its termination before the expiration of the time thereof.
XIII. In case of any disagreement between the parties hereto as to the true intent and meaning of this lease or any part thereof, or as to anything done under and by virtue of it, or growing out of it, the matter in controversy shall be referred by written submission to the arbitration of referees to be chosen in the manner following: one shall be chosen by each of the parties hereto, or if either shall unreasonably fail or neglect to appoint a referee when requested by the other, the Board of Railroad Commissioners of the State of New Hampshire may, after due notice to the party so failing or neglecting, appoint a referee; the third shall be selected by the two so chosen. The arbitrators shall hear the parties after due notice to each of them and if either party fail to attend after such notice may proceed ex parte. The award in writing of said arbitrators or a majority of them, being duly notified to the parties, shall be final and conclusive
AND WHEREAS by an indenture bearing date June 22, A. D. 1887, executed by and between the Boston & Maine Railroad and the Boston & Lowell Railroad Corporation, parties hereto, the railroad and property of the latter corporation were leased to the former, and are now held and operated by the former under said indenture which is still in force, now the Boston & Lowell Railroad Corporation consents that the Concord & Montreal Railroad may lease its railroad and property to the Boston & Maine Railroad by these presents, and to waive any agreement contained in said lease of the Boston & Lowell Railroad which provides that such lease of the Concord & Montreal Railroad shall be made to the Boston & Lowell Railroad Corporation, and all parties hereto agree that in the event of the termination of said lease of the Boston & Lowell Railroad to the Boston & Maine Railroad, whenever and however arising, and of the resumption by the Boston & Lowell Railroad Corporation of the management and operation of its said railroad and property, then the said Boston & Lowell Rail road Corporation shall become entitled to the remaining term of this lease, provided it is then legally authorized to take the same, and provided the Concord & Montreal Railroad is then authorized to lease to the Boston & Lowell Railroad Corporation, and, in such event, the Boston & Maine Railroad shall assign to the Boston & Lowell Railroad Corporation this lease and all its estate in the demised premises for the remainder of the term thereof, and shall execute all needful and proper instruments to perfect such assignment, and thereupon the said Boston & Lowell Railroad Corporation shall assume and perform all the conditions, covenants, obligations, and agreements on the part of the lessee to be thereafter performed according to the terms of this lease, and the Boston & Maine Railroad in any event or contingency shall continue to be liable to the Concord & Montreal Railroad for the performance of all the lessee's covenants of this lease during the entire term of ninety-one years.
Provided, however, that the Boston & Lowell Railroad Corporation shall not be liable for any cause of action or liability which shall have already accrued against or for any debt which shall have already become due or payable by the Boston & Maine Railroad prior to the date of such assignment, or which shall accrue or become due or payable by reason of anything on its part done or omitted prior to said date, except so far as the Boston & Lowell Railroad Corporation shall have received property the proceeds of which can properly be applied to the extinguishment of such cause of action, liability, debt, or other obligation; nor shall the Boston & Lowell Railroad be liable to account for any moneys or property received by the Boston & Maine Railroad at the inception of this lease or during the term for which it shall remain in possession under the same or for the proceeds thereof, except for such part thereof as the Boston & Lowell Railroad Corporation may have received, and only for its value at the time of receiving the same ; nor shall the Concord & Montreal Railroad be released from its obligation to account to the Boston & Maine Railroad for any permanent improvements for which the Boston & Maine Railroad shall have paid under the provisions of this lease ; but the obliga