The instrument's own words
page 1
119
This Indenture, a Last Mortgage, dated as of the first
day of March, 1922 by and between The Berkshire Company, a corporation
organized and existing under the laws of the State of Rhode Island, and
hereinafter called the "Company" party of the first part and Campbell Trust
Company, a corporation organized and existing under the laws of the
State of New York and having its principal place of business at 190
Broadway in the city and state of New York hereinafter called the
"Trustee" party of the second part Witnesseth Whereas the
Company is duly authorized by law to borrow money for its general
corporate purposes and to issue and sell its notes for money
so borrowed and to mortgage its property in order to secure the payment
of such debts and liabilities for such corporate purposes
The Company has duly determined to issue its Bonds to be known as
First Mortgage Fifteen Year Sinking Fund Gold Bond Bonds (hereinafter
called the "Bonds") in an aggregate amount not exceeding One
Hundred and Seventy Five Million Dollars ($175,000,000), to be issued in
denominations of $1,000 or multiples thereof, negotiable as to
principal, to be dated as of March 1, 1922 to be payable principal 1
1937, to bear interest from March 1, 1922 at the rate of 5% per
annum, payable semi annually on the first days of March and
September in each year to be paid as to principal and
interest at the office of the Trustee in said city of New York in gold
coin of the United States of America of a weight and fineness according to the standards of
weight and fineness existing March 1, 1922, to contain provisions
as to the payment or reimbursement of certain taxes by the Company
and to be redeemable at the option of the Company in whole or in
part on any interest date on thirty days notice at or more hundred
seven and one half per cent (107 1/2%) of the nominal amount thereof
together with accrued interest if called for redemption on or
prior to September 1, 1929 and at one hundred five per cent (105%)
of the nominal amount thereof together with accrued interest
if called for redemption thereafter, all as more fully described in the
Bonds and, Whereas the Bonds and trustees certificate to be
attached thereto and the Trustees certificate to be endorsed
thereon are to be published following the following forms with
appropriate revisions, omissions and variations as in their
subscriptions provided:
(Form of Bond)
United States of America
State of Rhode Island
The Berkshire Company
First Mortgage Fifteen Year Sinking Fund Gold Bond
The Berkshire Company, a corporation of the State
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120
of Rhode Island (hereinafter called the Company) for value received
promises to pay to the bearer, or, if registered, to the registered holder hereof
on March 1, 1937, at the office of Empire Trust Company, Twelve, 120 Providence,
in the city and State of New York, or at the office of any succeeding trustee,
Dollars in all gold coin of the United States of America or in a
equal to the standard of weight and fineness existing March 1, 1922,
and to pay interest thereon from March 1, 1922 at the rate of per
cent per annum, semi-annually, on the first days of September and
March in each year, at the office of said Empire Trust Company or
at the office of any successor trustee either in the gold coin, or in substitutes
and tenderer of the Company bonds annotated as key money notes,
This Bond is one of a duly authorized issue of Bonds of
the Company denoted as its First Mortgage five per cent 5% Sinking
Fund Gold Bond Bonds limited to an aggregate nominal amount of
One hundred and Twenty Five Thousand Dollars ($125,000.00) all of
which are issued under and equally and relatively secured by the
Trust Mortgage dated as April 1, 1922 made and executed by
the Company to said Empire Trust Company, as trustees, to wit:
Trust Mortgage reference is hereby made for a description of the
property thereby mortgaged and conveyed or assigned, the nature
and extent of the security and a statement of the terms and
conditions on which said Bonds are issued and secured, and the
rights of the holder thereof. The Company in said Trust Mortgage,
the Company will reimburse the bearer, or if registered, the registered
holder thereof for any documentary personal property tax im-
posing exceeding four mills per one dollar on each dollar of the value or
principal amount thereof which may be legally assessed upon
this Bond, or upon which said Bond or registered holder be reason
of his ownership hereof, and pay the same but leave a registered holder,
if application therefor be made in writing to said Trust
Mortgage, the Company will pay the principal and
interest of this Bond, without deduction first the principal or
interest for any United States income tax for which the Company or
the trustee under said Trust Mortgage may be required by
law to pay therefore, or required or permitted by law to detain,
deduct or withhold from payments, made or by reason of any present
or future laws, provided however, that the Company shall not be
obligated to pay to the United States Government and to the
bearer or registered holder hereof, in the aggregate, any local
Income Tax in excess of ten per cent per annum of the interest
of this Bond under any provisions hereof.
The Company will on or before March 1, 1924 and on or
before each March 1 thereafter, so long as this Bond remains
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outstanding, for the purpose of a sinking fund deposit with the trustee in
cash, an amount equal to fifteen per cent of the net earnings of the company
(after all other proper deductions) of the preceding fiscal year, said sinking fund to be
applied by the trustee to the purchase of Bonds of this issue at not exceeding the
their redemption price and accrued interest or not obtainable by purchase
to the call by at the their redemption price and accrued interest. In lieu
of cash the company may deposit with the trustee in any year for the
purposes of the sinking fund Bonds of this issue which bonds shall be applied
to the trustee and amount of the each bond thus offered to the company, or account
of said fifteen per cent of net earnings to be deposited in such year;
all as in said trust indenture provided, said cash funds to the Company
shall not yield the their redemption price and accrued interest.
Of the option of the company the Bonds is subject to redemption
on any semi annual interest payment date on thirty days notice at
112 1/2 per cent of the principal amount thereof together with accrued interest
if called for redemption on or before September 1, 1924, and at 125 per
cent of the principal amount thereof together with accrued interest
called for redemption thereafter. This Bond shall have pay day
following unless registered in the name of the holder at the office of the trustee
in the City and State of New York, at the office of the trustee in succeeding
trustee such registration being noted hereof. After such registration
no transfer shall be valid unless made at the office of the trustee by the
registered holder in person or by a attorney duly authorized, and suitably
identified thereto, but the trust bond may be discharged from registration by
being in whole manner transferred to the bond and thereupon
transferability by delivery shall be restored and their Bonds may
again from time to time be registered or transferred to the trustee
as before. Such registration shall not affect the negotiability
of the coupons which shall continue to be transferable by delivery.
In case an event of default as defined in said
Trust Indenture shall occur, the principal of all the Bonds may
be come to be declared due and payable in the manner and
with the effect provided in said Trust Mortgage.
No recourse shall be had for the payment of the Bond or
the interest thereon against any stockholder, officer or director
of the company, either directly or through the company, by
virtue of any statute or the enforcement of any assembled
or official law, such liability of stockholders, the directors or
others, as such being released by the holder hereof by the
acceptance of this Bond, and being also waived and
released by the terms of said Trust Mortgage.
This Bond shall not be entitled to any benefit unless
said Trust Mortgage or became valid or obligatory for any
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122
~~Insurance until it shall have become authenticated by the certificates~~
~~of the Trustees under said Trust Mortgage herein endorsed.~~
In witness whereof, the Carolina Company, has caused this
Bond to be duly signed by its President and Treasurer and by its
Secretary, and its corporate seal to be hereunto affixed and impressed
for said witness bearing the facsimile signature of its Treasurer to
be a token hereof, all executed duly authorized as of the first day
of March, 1922.
The Carolina Company
By President and Treasurer.
Secretary.
P.S.
(Form of Coupon)
No. ___.
On the first day of ___________, '19 (unless the bond bearing the
mentioned shall have been called for previous redemption wherever) The Carolina
Company will pay in the form of the offices of Company Trust Company
Trustee for the City and State of New York or at the office of any
succeeding trustee or successor of this company, in United States
gold coin, being six months' interest thereon due on its first mortgage
fifteen years This Two hundred Gold Coin, etc.
Treasurer.
(Form of Trustee's certificate)
This is one of the Bonds described in the within mentioned Trust
Mortgage.
Empire Trust Company Trustee
By.
and, Whereas the Board of Directors and stockholders of
the Company desiring to secure the payment of the Bonds and
the interest thereon at the time shall from time to time
due by an indenture of mortgage, and declared a trust upon and of
the property hereinafter described to be granted to the trustee
have respectively duly authorized and directed the execution of
this Indenture, and Whereas the execution of the Bond has
been, in all respects been duly authorized, and all things necessary
to make the Bonds either signed and sealed by the Company
and authenticated by the trustee, the said signing and
legal obligations of the Company and constitute this
Indenture a valid binding and legal Mortgage and
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deed of trust and agreement for the security of the Bonds in accordance
with its terms, shall be sure and performed and same happened.
Therefore this Indenture Witnesseth, that said the Carolina
Company, party of the first part in consideration of the premises and
by the latter meaning of the payment of the Bonds and the interest
thereon according to the true intent and meaning thereof, and also
and in consideration of the sum of one dollar to be paid in hand paid
by the trustees at or before the executing and delivery of these presents
the receipt whereof is hereby acknowledged has granted bargained
sold assigned transferred and conveyed and induced by these presents
does grant bargain sell assign transfer and convey unto the
Trustees and their successors in the trust, and its their assigns,
the property immediately hereinafter described, commonly referred
to hereinafter in this Indenture as the mortgaged property or such
estate),
Description 1
The following eight tracts or parcels of land, numbered (1&8) including,
with the buildings and improvements thereon, situated in the towns
of Richmond and Charlestown, county of Washington, and said
State of Rhode Island, and conveyed to the Company by deed of
Francis Co Ashdale, Sarah Johnson and George M. Hooper, executed
dated June 24, 1916, which said deed is duly recorded in the records
of Bond Evidence in said town of Richmond in Book 17 of page
247 and also in the records of Bond Evidence in said town of
Charlestown in Book 18 page 41
(1) That tract or parcel of land with the buildings and
improvements thereon situated in said towns of Richmond and
Charlestown and known as the Carolina Pine Estate, notice
was conveyed to the Carolina Pine Estate, notice
Colin Kirkham and Franklin B. Lowery dated January 1, 1878,
and recorded in the records of Bond Evidence in said town of
Richmond in Book 12 page 17, and in the records of Bond
Evidence in said town of Charlestown in Book 13 page 87
to which said reference is hereby made together with all the rights,
and privileges thereunto belonging but subject however to all the
reservations in said deed mentioned and all rights of way set
forth in that certain deed from said Kirkham and Lowery to
John Daniel District No 2 of Richmond and Charlestown, which
said deed is recorded in the records of Bond Evidence in said
town of Richmond in Book 12 page 41, specifying however
from two tract or parcel of land, the premises conveyed
to Fred D. Spivey by said Carolina Pine Company by deed
dated August 5, 1949 and recorded in the records of Bond Evidence
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124
in said Town of Richmond in Book 13 at page 279.
(2) That certain other tract or parcel of land situated in said Town
of Charlestown which was conveyed to said boarding mills company
by said deed from Elison Tinkham and Franklin Inkstaff dated January
1872 and recorded in the records of Board Evidence in said Town of
Charlestown in Book 13 at page 18.
(3) That certain tract or parcel of land situated in said Town of
Richmond, being the northeast corner of this tract of land purchased by
said Palmer from George Bent, containing two acres more or less
and bounded and described as follows: Commencing at the
northwest corner at the fence near the east post and running
easterly on the highway now running Easterly from that North Parish
factory on one and one half (1 1/2) rods to land formerly of said Boarding
mills company; thence Southeasterly on land formerly of said
company to the corner of the fence near the top of the said hill,
thence Northwesterly following the fence to the first mentioned corner,
and comprising all of the land purchased by said Palmer
from said Bent being most lying East of the fence running by or near
the driveway, and being the same premises conveyed to said
Boarding Mills Company by said Palmer by deed dated June 3,
1881 and recorded in the Book of Board Evidence in said Town of
Richmond in Book 12 at page 309.
(4) That certain tract or parcel of land with all the
buildings and improvements thereon located in the village
of Charlestown in said Town of Richmond containing by estimation
one half acre and bounded Northerly by land now or formerly
of David & Lefth Carterly by land now or formerly of Albert G.
Potter, Southerly by land now or formerly of William M. Bray
and Westerly by the highway that leads Northly from said
Boarding Village, being the same premises conveyed to said
Boarding Mills Company by Elizabeth Hopson by deed
dated April 28, 1862 and recorded in the records of Board
Evidence in said Town of Richmond in Book 11 at page 233.
(5) That certain tract or parcel of land containing
one half acre are situated in said village of Charlestown in said Town
of Richmond on the south easterly corner of the highway, running
through said village and to the dirt roadway leading to the
school house, and bounded and described as follows:
beginning at a point on the highway twenty eight and one
half (28 1/2) feet Northerly from the North side of the stone wall
on the North side of the home lot of James Greene and
wife and Martha M. Greene, thence Northerly on said
highway twenty five and one half (25 1/2) feet to said
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railway Company thence south on said railway boundary southerly to land formerly of said boarding
Mill Company, two hundred ninety nine (299) feet, thence northerly on
said land formerly of said boarding Mill Company seventy feet and
one half (70 1/2) feet to land now or formerly of James and Joseph H. Bruce,
thence easterly on said James and Joseph H. Bruce land one hundred
eighty seven (187) feet to said railway and the place of beginning, subject
however, to an agreement for maintenance of fences, between the same
parties committed to said East Carolina Railway by said James Bruce
and others by deed dated April 18th, 1885 and recorded in the records of
Land Contract in said Town of Richmond in Book 11 at page 327.
(6) That certain tract of land with the buildings
and improvements thereon situate in said village of Columbia
in said town of Richmond and bounded and described as follows:
Beginning at the south westerly corner of said lot at a point in the
middle of the Penobscot River and running northeasterly fifty and six
(56) feet to the easterly side of the highway running through said village to
land now or formerly of H. Barney Bruce, thence northeasterly and
northeasterly with said boundary land to land formerly of said Carolina
Mills Company, thence southeasterly and northeasterly with said
Carolina Mills Company to land now or formerly of Dean
Le Tufts, thence easterly with said Tufts land to the easterly line
of Valley's land, thence northerly in a straight line with the easterly line of
said Tufts land to the river and to the middle line thereof, thence
with said river to the point of beginning, subject however, to an agree-
ment for the maintenance of a certain fence between the
said Valley estate exceeded and land now or formerly of Philip
S. Potter, being the same premises conveyed to said Carolina
Mills Company by said Philip S. Potter by deed dated April 12th,
1884 and recorded in the Records of Land Contracts in said Town
of Richmond in Book 13 at page 589.
(7) That certain tract or parcel of land with the buildings
and improvements thereon situate in said village of Columbia
and town of Richmond and bounded and described as follows:
Beginning at the south end of a stone embedded in the ground
by the highway at the south westerly corner of a lot of land formerly
owned by the heirs of John Hoxie, deceased, and running
easterly on said Hoxie's land one hundred nine and one half
(109 1/2) feet to a mark on the embankment wall, thence easterly
ninety eight (98) feet to a stone marked "P", thence southeasterly and
southerly fourteen rods and one half (14 1/2) feet through the
center of an existing tree to a stake fence on said highway,
thence northerly sixty five and one half (65 1/2) feet to the
first mentioned bound, subject however to an agreement
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126
for maintenance of fences; being the same premises conveyed to said
boarding mills company by William H. Perry by said deed dated April 25th
1881, and recorded in the records of land evidenced in said town of
Richmond in Book No. 13 at page 1.
(8) That certain tract of a parcel of land with the buildings,
and improvements thereon situated in the village of Boarding in
said town of Richmond and bounded as follows: Northerly by land
owned by a family of boards to the south east, Easterly by land more or less formerly
of Albert S. Potter, Southerly by land more or formerly of Aaron Bartley
herein 80 feetly by the highway, extending by estimation 140 feet and
being the same premises conveyed to said Boarding mills Company
by Seth H. Pope and another by deed dated September 24, 1856, and
recorded in the records of land evidence in said town of Richmond
in Book No. 13 at page 31.
(9) That that tract of a parcel of land situated near said
village of Boarding in said town of Richmond and known as
the Sandlot containing by estimation thirteen acres and bounded
as follows: On the North by a highway, on the South by land formed,
of the Boarding Mills Company, more of the Boarding Company and also
by land formerly owned by Velma Toole on the East by land more
or formerly of said Boarding Company and on the West by land
formerly owned by Velma Toole index and the Turner land
so called, being the same premises conveyed to said the Boarding
Company by deed of date May 15th 1879 and
recorded in the records of land Evidence in the town of Richmond
in Book No. 18 at page 67, subject however to the restrictions
in said deed contained and to rights of way.
Division II
The manufacturing plant, power plants, generators, electrical
equipment with fuel plant, steam engines, boilers, flumes, spindles,
doffs, cards, drawing sets, roving and cutting equipment,
dyeing and finishing plants, fixtures, heating boiler and
all and other machinery, equipment and furniture
located in or upon the foregoing described real estate in any of
it and owned by the company, not including those items
in this conveyance the company's assets which are commonly
considered as "quick assets" in good accounting practice.
Division III
All right title Little and interest of the company in and to the
Poncetville Pond and the land under the same and in and to
the water power, water ways, water and riparian rights to
water privileges and easements of every kind and nature
belonging to appertaining to the property above described.
page 9
in division 1 or any of it and all other water wheels and electric turbines
and all flumes, wheel houses, raceways, belt-heads, fixtures, shafting,
gearing, belting, machinery, tools and apparatus used in connection therewith
to have and to hold the same with all the rights pertaining
and appertaining thereto belonging to the trustee its successors and
assigns, to and for its and their proper use and benefit forever, both
in trust moreover, unless and subject to the conditions herein after
set forth, for the equal, concurrent and proportional benefit and security of all
interest and future holders of the bonds and interest coupons issued
and to be issued under this Indenture, without preference, priority or
distinction of any one bond from any other bond by any reason of
priority in the issue, sale or registration thereof or otherwise.
And the company for the consideration described and set forth covenants
with the trustee for the benefit of the trustee and of the holders
from time to time of the bonds secured by this Trust Mortgage as
follows:
Article I
Form, Execution, Issue and Registration of Bonds.
Section 1. The amount of bonds which may be executed
by the Company and which may be authenticated by the Trustee
is limited so that at no time shall there be issued unsecured
Bonds of aggregate principal amount exceeding one hundred
seventy thousand Dollars ($170,000).
Section 2. The bonds to be secured under and issued by
this Trust Mortgage, together with the interest coupons appertaining
thereto, shall be substitutable if the loan and purpose above
recited, shall be paid off on or before 1st March 1922, shall be payable before
1st March 1937, and bear interest at the rate of seven and one half (7 1/2)
per cent per annum payable semi annually on the first day
of March and September. The corporate seal of each Bond shall
be embossed thereon and shall show the number of the Bond to
which they are assigned with numbers dice and amounts.
The bonds shall be in denominations of one thousand dollars
($1,000) and five hundred dollars ($500). The bonds for one
thousand dollars ($1,000) shall be numbered consecutively from
No. 1 upwards. The bonds of five hundred dollars ($500) shall
be numbered consecutively from No. 2-1 upwards.
Section 3. The holder of any bond of the denomination
of $1,000 may, at its option, and by surrendering to the trustee
of such bond in form with all corresponding coupons
thereunto appertaining, receive in exchange therefor two
$500 bonds of numbers not contemporaneously outstanding,
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128
Whenever a Bond of the denomination of $1,000, together with all
unregistered coupons hereunto appertaining shall be surrendered
in bearer form, the company will issue and the trustee shall
upon receipt of such new Bond authenticate and in exchange
therefor shall deliver two $500 Bonds in bearer form bearing all
unregistered coupons. Any holder of four or more Bonds
of the denomination of $500 may at his option ask and surrender
to the trustee of such Bonds in bearer form in the principal amount
of $2,000 or some multiple thereof together with all unregistered coupons
hereunto appertaining receive in exchange therefor a like principal
amount of Bonds in bearer form of the denomination of $1,000 and
of whatever not contrary to law outstanding. Whenever Bonds
of denomination of $2,000 together with all unregistered coupons
hereunto appertaining shall be surrendered to the trustee in
bearer form in the principal amount of $2,000 or some multiple
thereof the company will issue and the trustee shall upon
receipt of such new Bond or Bonds authenticate and in exchange
therefor shall deliver a like principal amount of Bonds in
bearer form of the denomination of $1,000 bearing all unregistered
coupons. In some cases of exchange of Bonds the trustee
shall forthwith cancel and exterminate the surrendered Bonds and
coupons, furthermore the trustee shall furnish the company with
a certificate to that effect.
Section 4. If the Bonds shall be executed by the President
and Treasurer and by the Secretary of the company and its
corporate seal affixed thereto. In case any one or more
officers hereinto shall have signed a sealed entry of the Bonds
which cause to be such affixed signed or affixed before the Bonds so signed
and sealed shall have been actually authenticated and delivered
by the trustee such cases may nevertheless upon the request
of the Company be authenticated and delivered and certain bonded
and bonds may be issued as though the persons who signed and
sealed such Bonds had not ceased to be such officers of the
company.
Section 5. The coupons to be attached to the Bonds shall
be authenticated by the facsimile signature of the Treasurer
of the company, and the company may adopt and use
for that purpose the facsimile signature of any person who
shall have been Treasurer of the company including the signing
the last that he may have had ceased to be such Treasurer at the
time when such Bonds shall be actually authenticated and
delivered.
Section 6. Only such of the Bonds as shall merit...
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endorsed thereon a certificate of authentication substantially in the form
hereinbefore set forth duly executed by the trustee shall be entitled to any
lien or benefit hereunder No Bond and no coupon therefore relating
shall be valid or admissible for any purpose unless such certificate of
authentication shall have been duly endorsed on such Bond; and such
certificate of the trustee when any Bond produced in behalf of the company
shall be conclusive and the only evidence that the Bond is authenticated
has been duly issued hereunder and that the holder is entitled to the
benefit of the trust hereby created Before authenticating or delivering
any Bond, the trustee shall cut off cancel and where its written
objection delivers to the company all coupons thereon when matured
Section 7 The Bonds shall be negotiable and shall
bear day bearing interest unless registered as to principal in the manner
hereinbefore provided The trustee will keep both books for the registration as
to principal only and transfer of the Bonds as in this indenture provided
Carry Bonds may be registered on said books as to principal only
upon presentation thereof at the office of the trustee and such
registration shall be noted on the Bonds After such registration any
transfer shall be void unless made on said books by the registered
holder in person or by his attorney duly authorized and certified
noted on the Bonds but the Bond may be discharged from registration
by being in such manner unmarked handed to trustee and thereupon its
transferability by delivery shall be restored and such Bond may
again and from time to time be registered or be transferred to bearer
as before Registration of any Bond as to principal shall not however
affect the negotiability of the coupons pertaining to such Bond
but every such coupon shall continue to pay by delivery merely
and shall remain payable to bearer
Section 8 On any Bond registered as to principal the
person in whose name the same shall be registered shall for all
purposes be deemed and regarded as the absolute owner thereof
and payment of or on account of the principal of any such Bond
shall be made only to or upon the order of the registered holder
thereof but such designation may be changed as hereinbefore
provided All such payments shall be valid and
effectual to satisfy and discharge the liability upon such Bond
to the extent of the sum or sums so paid The company and
the trustee shall deem and treat the bearer of any Bond which
shall not at the time be registered as to principal and the bearer
of any coupon for interest on any Bond whether such Bond
shall be registered as to principal or not as the absolute owner
of such Bond or coupon as the case may be whether such
Bond or coupon shall be overdue or not for the purpose
The page as recorded
